MARKETOCRACY FUNDS
AMENDED AND RESTATED
DECLARATION OF TRUST
MARKETOCRACY FUNDS
TABLE OF CONTENTS
PAGE
AMENDED AND RESTATED..........................................................1
DECLARATION OF TRUST..........................................................1
MARKETOCRACY FUNDS.........................................................4
DECLARATION OF TRUST..........................................................4
ARTICLE I. THE TRUST..........................................................4
SECTION I.1 NAME...........................................................4
SECTION I.2 TRUST PURPOSE..................................................4
SECTION I.3 DEFINITIONS....................................................4
ARTICLE II. TRUSTEES..........................................................6
SECTION II.1 NUMBER AND QUALIFICATION......................................6
SECTION II.2 TERM AND ELECTION.............................................6
SECTION II.3 RESIGNATION AND REMOVAL.......................................6
SECTION II.4 VACANCIES.....................................................6
SECTION II.5 MEETINGS......................................................7
SECTION II.6 OFFICERS; CHAIRMAN OF THE BOARD...............................7
SECTION II.7 BY-LAWS.......................................................8
ARTICLE III. POWERS OF TRUSTEES..............................................8
SECTION III.1 GENERAL......................................................8
SECTION III.2 INVESTMENTS..................................................8
SECTION III.3 LEGAL TITLE..................................................8
SECTION III.4 SALE OF INTERESTS............................................9
SECTION III.5 BORROW MONEY.................................................9
SECTION III.6 DELEGATION; COMMITTEES.......................................9
SECTION III.7 COLLECTION AND PAYMENT.......................................9
SECTION III.8 EXPENSES.....................................................9
SECTION III.9 MISCELLANEOUS POWERS.........................................9
SECTION III.10 FURTHER POWERS.............................................10
ARTICLE IV. INVESTMENT ADVISORY, ADMINISTRATIVE SERVICES
AND PLACEMENT AGENT ARRANGEMENTS.............................................10
SECTION IV.1 INVESTMENT ADVISORY AND OTHER ARRANGEMENTS...................10
SECTION IV.2 PARTIES TO CONTRACT..........................................10
ARTICLE V. LIMITATIONS OF LIABILITY.........................................10
SECTION V.1 NO PERSONAL LIABILITY OF TRUSTEES, OFFICERS,
EMPLOYEES, AGENTS.........................................................10
SECTION V.2 INDEMNIFICATION OF TRUSTEES, OFFICERS, EMPLOYEES, AGENTS......11
SECTION V.3 LIABILITY OF HOLDERS; INDEMNIFICATION.........................11
SECTION V.4 NO BOND REQUIRED OF TRUSTEES..................................11
SECTION V.5 NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC....11
SECTION V.6 RELIANCE ON EXPERTS, ETC......................................12
SECTION V.7 ASSENT TO DECLARATION.........................................12
ARTICLE VI. INTERESTS IN THE TRUST..........................................12
SECTION VI.1 INTERESTS....................................................12
SECTION VI.2 RIGHTS OF HOLDERS............................................12
SECTION VI.3 REGISTER OF INTERESTS........................................12
SECTION VI.4 NOTICES......................................................12
SECTION VI.5 NO PRE-EMPTIVE RIGHTS; DERIVATIVE SUITS......................13
SECTION VI.6 NO APPRAISAL RIGHTS..........................................13
ARTICLE VII. PURCHASES AND REDEMPTIONS......................................13
SECTION VII.1 PURCHASES...................................................13
SECTION VII.2 REDEMPTION BY HOLDER........................................13
SECTION VII.3 REDEMPTION BY TRUST.........................................13
SECTION VII.4 NET ASSET VALUE.............................................13
ARTICLE VIII. HOLDERS.......................................................14
SECTION VIII.1 MEETINGS OF HOLDERS........................................14
SECTION VIII.2 NOTICE OF MEETINGS.........................................14
SECTION VIII.3 RECORD DATE FOR MEETINGS...................................14
SECTION VIII.4 PROXIES, ETC...............................................14
SECTION VIII.5 REPORTS....................................................15
SECTION VIII.6 INSPECTION OF RECORDS......................................15
SECTION VIII.7 VOTING POWERS..............................................15
SECTION VIII.8 SERIES OF INTERESTS........................................15
SECTION VIII.9 HOLDER ACTION BY WRITTEN CONSENT...........................17
SECTION VIII.10 HOLDER COMMUNICATIONS.....................................17
ARTICLE IX. DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS; ETC.........17
SECTION IX.1 DURATION.....................................................18
SECTION IX.2 TERMINATION OF TRUST.........................................18
SECTION IX.3 AMENDMENT PROCEDURE..........................................18
SECTION IX.4 MERGER, CONSOLIDATION AND SALE OF ASSETS.....................19
SECTION IX.5 INCORPORATION................................................19
ARTICLE X. MISCELLANEOUS....................................................19
SECTION X.1 CERTIFICATE OF DESIGNATION; AGENT FOR SERVICE OF PROCESS......19
SECTION X.2 GOVERNING LAW.................................................20
SECTION X.3 COUNTERPARTS..................................................20
SECTION X.4 RELIANCE BY THIRD PARTIES.....................................20
SECTION X.5 PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS...................20
SECTION X.6 TRUST ONLY....................................................20
SECTION X.7 WITHHOLDING...................................................21
SECTION X.8 HEADINGS AND CONSTRUCTION.....................................21
MARKETOCRACY FUNDS
DECLARATION OF TRUST
This DECLARATION OF TRUST of MARKETOCRACY FUNDS is made on this twentieth
day of July 1999, and amended on June 2, 2000 by the parties signatory hereto,
as trustees.
WHEREAS, the Trustee desires to form a business trust under the law of
Delaware for the investment and reinvestment of its assets; and
WHEREAS, it is proposed that the Trust assets be composed of cash,
securities and other Assets contributed to the Trust by the holders of interests
in the Trust entitled to ownership rights in the Trust,
NOW, THEREFORE, the Trustee hereby declares that the Trustees will hold in
trust all cash, securities and other assets which they may from time to time
acquire in any manner as Trustees hereunder, and manage and dispose of the same
for the benefit of the holders of interests in the Trust and subject to the
following terms and conditions.
ARTICLE I. THE TRUST
SECTION I.1 NAME.
The name of the trust created hereby (the "Trust") shall be "Marketocracy
Funds", and so far as may be practicable the Trustees shall conduct the Trusts
activities, execute all documents and sue or be sued under that name, which name
(and the word "Trust" wherever hereinafter used) shall not refer to the Trustees
in their individual capacities or to the officers, agents, employees or holders
of interest in the Trust. However, should the Trustees determine that the use of
the name of the Trust is not advisable, they may select such other name for the
Trust as they deem proper and the Trust may hold its property and conduct its
activities under such other name. Any name change shall become effective upon
the execution by a majority of the then Trustees of an instrument setting forth
the new name and the filing of a certificate of amendment pursuant to Section
3810(b) of Title 12 of the Delaware Code (the "DBTA"). Any such instrument shall
not require the approval of the holders of interests in the Trust, but shall
have the status of an amendment to this Declaration.
SECTION I.2 TRUST PURPOSE.
The purpose of the Trust is to conduct, operate and carry on the business of an
open-end management investment company registered under the 1940 Act. In
furtherance of the foregoing, it shall be the purpose of the Trust to do
everything necessary, suitable, convenient or proper for the conduct, promotion
and attainment of any businesses and purposes which at any time may be
incidental or may appear conducive or expedient for the accomplishment of the
business of an open-end management investment company registered under the 1940
Act and which may be engaged in or carried on by a trust organized under the
DBTA and in connection therewith the Trust shall have and may exercise all of
the powers conferred by the laws of the State of Delaware upon a Delaware
business trust.
SECTION I.3 DEFINITIONS.
As used in this Declaration, the following terms shall have the following
meanings:
(a) "1940 Act" shall mean the Investment Company Act of 1940, as
amended from time to time, and the rules and regulations thereunder, as adopted
or amended from time to time.
(b) "Affiliated Person", "Assignment" and "Interested Person" shall
have the meanings given them in the 1940 Act.
(c) "Administrator" shall mean any party furnishing services to the
Trust pursuant to any administrative services contract described in Section 4.1
hereof.
(d) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations thereunder, as adopted or
amended from time to time.
(f) "Commission" shall mean the Securities and Exchange Commission.
(g) "Declaration" shall mean this Declaration of Trust as amended from
time to time. References in this Declaration to "Declaration", "hereof",
"herein", and "hereunder" shall be deemed to refer to the Declaration rather
than the article or section in which such words appear. This Declaration shall,
together with the By-Laws, constitute the governing instrument of the Trust
under the DBTA.
(h) "DBTA" shall mean the Delaware Business Trust Act, Delaware Code
Annotated title 12, Sections 3801 et seq., as amended from time to time.
(i) "Fiscal Year" shall mean an annual period as determined by the
Trustees unless otherwise provided by the Code or applicable regulations.
(j) "Holders" shall mean as of any particular time any or all holders
of record of Interests in the Trust or in Trust Property, as the case may be, at
such time.
(k) "Interest" shall mean a Holders units of interest into which the
beneficial interest in the Trust and each series of the Trust shall be divided
from time to time.
(l) "Investment Adviser" shall mean any party furnishing services to
the Trust pursuant to any investment advisory contract described in Section 4.1
hereof.
(m) "Majority Interests Vote" shall mean the vote, at a meeting of the
Holders of interests, of the lesser of, (A) 67% or more of the Interests present
or represented at such meeting, provided the Holders of more than 50% of the
Interests are present or represented by proxy or (B) more than 50% of the
interest.
(n) "Person" shall mean and include an individual, corporation,
partnership, trust, association, joint venture and other entity, whether or not
a legal entity, and a government and agencies and political subdivisions
thereof.
(o) "Registration Statement" as of any particular time shall mean the
Registration Statement of the Trust which is effective at such time under the
1940 Act.
(p) "Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is owned
or held by or for the account of the Trust or the Trustees. The Trustees may
authorize the division of Trust Property into two or more series, in accordance
with the provisions of Section 8.8 hereof, in which case all references in this
Declaration to the Trust, Trust Property, Interests therein or Holders thereof
shall be deemed to refer to each such series, as the case may be, except as the
context otherwise requires. Any series of Trust Property shall be established
and designated, and the variations in the relative rights and preferences as
between the different series shall be fixed and determined, by the Trustees.
(q) "Trustees" shall mean such persons who are indemnified as trustees
of the Trust on the signature page of this Declaration, so long as they shall
continue in office in accordance with the terms of this Declaration of Trust,
and all other persons who at the time in question have been duly elected or
appointed as trustees in accordance with the provisions of this Declaration of
Trust and are then in office, in their capacity as trustees hereunder.
ARTICLE II. TRUSTEES
SECTION II.1 NUMBER AND QUALIFICATION.
The number of Trustees shall initially be two and shall thereafter be fixed from
time to time by written instrument signed by majority of the Trustees so fixed
then in office, provided, however, that the number of Trustees shall in no event
be less than one. A Trustee shall be an individual at least 21 years of age who
is not under legal disability.
(a) Any vacancy created by an increase in Trustees shall be filled by
the appointment or election of an individual having the qualifications described
in this Article as provided in Section 2.4. Any such appointment shall not
become effective, however, until the individual appointed or elected shall have
accepted in writing such appointment or election and agreed in writing to be
bound by the terms of the Declaration. No reduction in the number of Trustees
shall have the effect of removing any Trustee from office.
(b) Whenever a vacancy in the number of Trustees shall occur, until
such vacancy is filled as provided in Section 2.4 hereof, 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.
SECTION II.2 TERM AND ELECTION.
Each Trustee named herein, or elected or appointed prior to the first meeting of
the Holders, shall (except in the event of resignations or removals or vacancies
pursuant to Section 2.3 or 2.4 hereof) hold office until his or her successor
has been elected at such meeting and has qualified to serve as Trustee.
Beginning with the Trustees elected at the first meeting of Holders, each
Trustee shall hold office during the lifetime of this Trust and until its
termination as hereinafter provided unless such Trustee resigns or is removed as
provided in Section 2.3 below.
SECTION II.3 RESIGNATION AND REMOVAL.
Any Trustee may resign (without need for prior or subsequent accounting by an
instrument in writing signed by him or her and delivered or mailed to the
Chairman, if any, the President or the Secretary and such resignation shall be
effective upon such delivery, or at a later date according to the terms of the
instrument.
(a) Any of the Trustees may be removed with or without cause by the
affirmative vote of the Holders of two-thirds (2/3) of the Interests or
(provided the aggregate number of Trustees, after such removal and after giving
effect to any appointment made to fill the vacancy created by such removal,
shall not be less than the number required by Section 2.1 hereof) with cause, by
the action of two-thirds (2/3) of the remaining Trustees. Removal with cause
shall include, but not be limited to, the removal of a Trustee due to physical
or mental incapacity.
(b) Upon the resignation or removal of a Trustee, or his or her
otherwise ceasing to be a Trustee, he or she shall execute and deliver such
documents as the remaining Trustees shall require for the purpose of conveying
to the Trust or the remaining Trustees any Trust Property held in the name of
the resigning or removed Trustee. Upon the death of any Trustee or upon removal
or resignation due to any Trustees incapacity to serve as trustee, his or her
legal representative shall execute and deliver on his or her behalf such
documents as the remaining Trustees shall require as provided in the preceding
sentence.
SECTION II.4 VACANCIES.
The term of office of a Trustee shall terminate and a vacancy shall occur in the
event of the death, resignation, adjudicated incompetence or other incapacity to
perform the duties of the office, or removal, of a Trustee. A vacancy shall also
occur in the event of an increase in the number of trustees as provided in
Section 2.1. No such vacancy shall operate to annul this Declaration or to
revoke any existing trust created pursuant to the terms of this Declaration. In
the case of a vacancy, the Holders of at least a majority of the Interests
entitled to vote, acting at any meeting of the Holders held in accordance with
Section 8.1 hereof, or, to the extent permitted by the 1940 Act, a majority vote
of the Trustees continuing in office acting by written instrument or
instruments, may fill such vacancy, and any Trustee so elected by the Trustees
or the Holders shall hold office as provided in this Declaration. There shall be
no cumulative voting by the Holders in the election of Trustees.
SECTION II.5 MEETINGS.
Meetings of the Trustees shall be held from time to time within or without the
State of Delaware upon the call of the Chairman, if any, the President, the
Chief Operating Officer, the Secretary, an Assistant Secretary or any two
Trustees.
(a) Regular meetings of the Trustees may be held without call or
notice at a time and place fixed by the By-Laws or by resolution of the
Trustees. Notice of any other meeting shall be given not later than 72 hours
preceding the meeting by United States mail or by electronic transmission to
each Trustee at his business address as set forth in the records of the Trust or
otherwise given personally not less than 24 hours before the meeting but may be
waived in writing by any Trustee either before or after such meeting. The
attendance of a Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Trustee attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting has
not been lawfully called or convened.
(b) A quorum for all meetings of the Trustees shall be one-third of
the total number of Trustees, but (except at such time as there is only one
Trustee) no less than two Trustees. Unless provided otherwise in this
Declaration, any action of the Trustees may be taken at a meeting by vote of a
majority of the Trustees present (a quorum being present) or without a meeting
by written consent of a majority of the Trustees, which written consent shall be
filed with the minutes of proceedings of the Trustees or any such committee. If
there be less than a quorum present at any meeting of the Trustees, a majority
of those present may adjourn the meeting until a quorum shall have been
obtained.
(c) Any committee of the Trustees, including an executive committee,
if any, may act with or without a meeting. A quorum for all meetings of any such
committee shall be two or more of the members thereof, unless the Board shall
provide otherwise. Unless provided otherwise in this Declaration, any action of
any such committee may be taken at a meeting by vote of a majority of the
members present (a quorum being present) or without a meeting by written consent
of a majority of the members, which written consent shall be filed with the
minutes of proceedings of the Trustees or any such committee.
(d) With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons of the Trust or are otherwise
interested in any action to be taken may be counted for quorum purposes under
this Section 2.5 and shall be entitled to vote to the extent permitted by the
1940 Act.
(e) All or any one or more Trustees may participate in a meeting of
the Trustees or any committee thereof by means of a conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to such
communications system shall constitute presence in person at such meeting,
unless the 1940 Act specifically requires the Trustees to act "in person" in
which case such term shall be construed consistent with Commission or staff
releases or interpretations.
SECTION II.6 OFFICERS; CHAIRMAN OF THE BOARD.
The Trustees shall, from time to time, elect officers of the Trust, including a
President, a Secretary and a Treasurer. The Trustees shall elect or appoint,
from time to time, a Trustee to act as Chairman of the Board who shall preside
at all meetings of the Trustees and carry out such other duties as the Trustees
shall designate. The Trustees may elect or appoint or authorize the President to
appoint such other officers or agents with such powers as the Trustees may deem
to be advisable. The President, Secretary and Treasurer may, but need not, be a
Trustee. The Chairman of the Board and such officers of the Trust shall serve in
such capacity for such time and with such authority as the Trustees may, in
their discretion, so designate or as provided by in the By-Laws.
SECTION II.7 BY-LAWS.
The Trustees may adopt and, from time to time, amend or repeal the By-Laws for
the conduct of the business of the Trust not inconsistent with this Declaration
and such By-Laws are hereby incorporated in this Declaration by reference
thereto.
ARTICLE III. POWERS OF TRUSTEES
SECTION III.1 GENERAL.
The Trustees shall have exclusive and absolute control over management of the
business and affairs of the Trust, but with such powers of delegation as may be
permitted by this Declaration and the DBTA. The Trustees may perform such acts
as in their sole discretion are proper for conducting the business and affairs
of the Trust. The enumeration of any specific power herein shall not be
construed as limiting the aforesaid power. Such powers of the Trustee may be
exercised without order of or recourse to any court.
SECTION III.2 INVESTMENTS.
The Trustees shall have power to:
(a) conduct, operate and carry on the business of an investment
company;
(b) subscribe for, invest in, reinvest in, purchase or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange, distribute or otherwise
deal in or dispose of United States and foreign currencies and related
instruments including forward contracts, and securities, including common and
preferred stock, warrants, bonds, debentures, time notes and all other evidences
of indebtedness, negotiable or nonnegotiable instruments, obligations,
certificates of deposit or indebtedness, commercial paper, repurchase
agreements, reverse repurchase agreements, convertible securities, forward
contracts, options, futures contracts, and other securities, including, without
limitation, those issued, guaranteed or sponsored by any state, territory or
possession of the United States and the District of Columbia and their political
subdivisions, agencies and instrumentalities, or by the United States
Government, any foreign government, or any agency, instrumentality or political
subdivision of the United States Government or any foreign government, or
international instrumentalities, or by any bank, savings institution,
corporation or other business entity organized under the laws of the United
States or under foreign laws; 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, firms, associations, or corporations to exercise any of said
rights, powers and privileges in respect of any of said instruments; and the
Trustees shall be deemed to have the foregoing powers with respect to any
additional securities in which the Trustees may determine to invest.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust, nor shall the Trustees be limited
by any law limiting the investments which may be made by fiduciaries.
SECTION III.3 LEGAL TITLE.
Legal title to all the Trust Property shall be vested in the Trust as a separate
legal entity under the DBTA, except that the Trustees shall have the 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 any other Person on behalf of the Trust
on such terms as the Trustees may determine.
In the event that title to any part of the Trust Property is vested in
one or more Trustees, 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 his or her due election and qualification. 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. To the extent permitted by law, such vesting and cessation
of title shall be effective whether or not conveyancing documents have been
executed and delivered.
SECTION III.4 SALE OF INTERESTS.
Subject to the more detailed provisions set forth in Article VII, the Trustees
shall have the power to permit persons to purchase Interests and to add or
reduce, in whole or in part, their Interest in the Trust.
SECTION III.5 BORROW MONEY.
The Trustees shall have power to borrow money or otherwise obtain credit and to
secure the same by mortgaging, pledging or otherwise subjecting as security the
assets of the Trust, including the lending of portfolio securities, and to
endorse, guarantee or undertake the performance of any obligation, contract or
engagement of any other person, firm, association or corporation.
SECTION III.6 DELEGATION; COMMITTEES.
The Trustees shall have the power, consistent with their continuing exclusive
authority over the management of the Trust and the Trust Property, to delegate
from time to time to such of their number or to officers, employees or agents of
the Trust the doing of such things and the execution of such instruments, either
in the name of the Trust or the names of the Trustees or otherwise, as the
Trustees may deem expedient.
SECTION III.7 COLLECTION AND PAYMENT.
The Trustees shall have power to collect all property due to the Trust; to pay
all claims, including taxes, against the Trust Property; to prosecute, defend,
compromise or abandon any claims relating to the Trust Property; to foreclose
any security interest securing any obligations, by virtue of which any property
is owned to the Trust; and to enter into releases, agreements and other
instruments.
SECTION III.8 EXPENSES.
The Trustees shall have the power to incur and pay any expenses which in the
opinion of the Trustees are necessary or incidental to carry out any of the
purposes of this Declaration, and to pay reasonable compensation from the funds
of the Trust to themselves as Trustees. The Trustees shall fix the compensation
of all officers, employees and Trustees. The Trustees may pay themselves such
compensation for special services, including legal and brokerage services, as
they in good faith may deem reasonable (subject to any limitations in the 1940
Act), and reimbursement for expenses reasonably incurred by themselves on behalf
of the Trust.
SECTION III.9 MISCELLANEOUS POWERS.
The Trustees shall have the power to: (a) employ or contract with such Persons
as the Trustees may deem desirable for the transaction of the business of the
Trust and terminate such employees or contractual relationships as they consider
appropriate; (b) enter into joint ventures, partnerships and any other
combinations or associations; (c) purchase, and pay for out of Trust Property,
insurance policies (including, but not limited to, fidelity bonding and errors
and omission policies) insuring the Investment Adviser, Administrator,
Distributor, Holders, Trustees, officers, employees, agents, or independent
contractors of the Trust against all claims arising by reason of holding any
such position or by reason of any action taken or omitted by any such person in
such capacity, whether or not the Trust would have the power to indemnify such
Person against liability; (d) establish pension, profit-sharing and other
retirement, incentive and benefit plans for all Trustees, officers, employees
and agents of the Trust; (e) to the extent permitted by law, indemnify any
Person with whom the Trust has dealings, including the Investment Adviser,
Administrator, Distributor, Holders, Trustees, officers, employees, agents or
independent contractors of the Trust, to such extent as the Trustees shall
determine; (f) guarantee indebtedness or contractual obligations of others; (g)
determine and change the Fiscal Year of the Trust and the method by which its
accounts shall be kept; and (h) adopt a seal for the Trust, but the absence of
such seal shall not impair the validity of any instrument executed on behalf of
the Trust.
SECTION III.10 FURTHER POWERS.
The Trustees shall have power to conduct the business of the Trust and carry on
its operations in any and all of its branches and maintain offices, whether
within or without the State of Delaware, in any and all states of the United
States of America, in the District of Columbia, in any foreign countries, and in
any and all commonwealths, territories, dependencies, colonies, possessions,
agencies or instrumentalities of the United States of America and of foreign
countries, and to do all such other things and execute all such instruments as
they deem necessary, proper or desirable in order to promote the interests of
the Trust although such things are not herein specifically mentioned. Any
determination as to what is in the interests of the Trust made by the Trustees
in good faith shall be conclusive and shall be binding upon the Trust and the
Holders, past, present and future. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees. The Trustees shall not be required to obtain any court order to deal
with Trust Property.
ARTICLE IV. INVESTMENT ADVISORY, ADMINISTRATIVE SERVICES AND
PLACEMENT AGENT ARRANGEMENTS
SECTION IV.1 INVESTMENT ADVISORY AND OTHER ARRANGEMENTS.
The Trustees may in their discretion, from time to time, enter into contracts or
agreements for investment advisory services, administrative services (including
transfer and dividend disbursing agency services), distribution services,
fiduciary (including custodian) services, placement agent services, Holder
servicing and distribution services or other services, whereby the other party
to such contract or agreement shall undertake to furnish the Trustees such
services as the Trustees shall, from time to time, consider desirable and all
upon such terms and conditions as the Trustees may in their discretion
determine. Notwithstanding any other provisions of this Declaration to the
contrary, the Trustees may authorize any Investment Adviser (subject to such
general or specific instructions as the Trustees may, from time to time, adopt)
to effect purchases, sales, loans or exchanges of Trust Property on behalf of
the Trustees or may authorize any officer, employee or Trustee to effect such
purchases, sales, loans or exchanges pursuant to recommendations of any such
Investment Adviser (all without further action by the Trustees). Any such
purchases, sales, loans and exchanges shall be binding upon the Trust.
SECTION IV.2 PARTIES TO CONTRACT.
Any contract or agreement of the character described in Section 4.1 of this
Article IV or in the By-Laws of the Trust may be entered into with any Person,
although one or more of the Trustees or officers of the Trust or any Holder may
be an officer, director, trustee, shareholder, or member of such other party to
the contract or agreement, and no such contract or agreement shall be
invalidated or rendered voidable by reason of the existence of any such
relationship, nor shall any person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of such contract or agreement or accountable for any profit realized
directly or indirectly therefrom, provided that the contract or agreement when
entered into was reasonable and fair and not inconsistent with the provisions of
this Article IV or the By-Laws. Any Trustee or officer of the Trust or any
Holder may be the other party to contracts or agreements entered into pursuant
to Section 4.1 hereof or the By-Laws of the Trust, and any Trustee or officer of
the Trust or any Holder may be financially interested or otherwise affiliated
with Persons who are parties to any or all of the contracts or agreements
mentioned in this Section 4.2.
ARTICLE V. LIMITATIONS OF LIABILITY
SECTION V.1 NO PERSONAL LIABILITY OF TRUSTEES, OFFICERS, EMPLOYEES, AGENTS.
No Trustee, officer, employee or agent of the Trust when
acting in such capacity shall be subject to any personal liability whatsoever,
in his or her individual capacity, to any Person, other than the Trust or its
Holders, in connection with Trust Property or the affairs of the Trust; and all
such Persons shall look solely to the Trust Property for satisfaction of claims
of any nature against a Trustee, officer, employee or agent of the Trust arising
in connection with the affairs of the Trust. No Trustee, officer, employee or
agent of the Trust shall be liable to the Trust, Holders of Interests therein,
or to any Trustee, officer, employee, or agent thereof for any action or failure
to act (including, without limitation, the failure to compel in any way any
former or acting Trustee to redress any breach of trust) except for his or her
own bad faith, willful misfeasance, gross negligence or reckless disregard of
his or her duties.
SECTION V.2 INDEMNIFICATION OF TRUSTEES, OFFICERS, EMPLOYEES, AGENTS.
The Trust shall indemnify each of its Trustees, officers, employees, and agents
(including Persons who serve at its request as directors, officers or trustees
of another organization in which it has an interest, as a shareholder, creditor
or otherwise) against all liabilities and expenses (including amounts paid in
satisfaction of judgments, in compromise, as fines and penalties, and as counsel
fees) reasonably incurred by him or her in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
in which he or she may be involved or with which he or she may be threatened,
while in office or thereafter, by reason of his or her being or having been such
a Trustee, officer, employee or agent, except with respect to any matter as to
which he or she shall have been adjudicated to have acted in bad faith, willful
misfeasance, gross negligence or reckless disregard of his or her duties;
provided, however, that as to any matter disposed of by a compromise payment by
such Person, pursuant to a consent decree or otherwise, no indemnification
either for said payment or for any other expenses shall be provided unless there
has been a determination that such Person did not engage in willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office by the court or other body approving the settlement
or other disposition or by a reasonable determination, based upon review of
readily available facts (as opposed to a full trial-type inquiry), that he or
she did not engage in such conduct by written opinion from independent legal
counsel approved by the Trustees. The rights accruing to any Person under these
provisions shall not exclude any other right to which he or she may be lawfully
entitled; provided that no Person may satisfy any right of indemnity or
reimbursement granted herein or in Section 5.1 or to which he or she may be
otherwise entitled except out of the Trust Property. The Trustees may make
advance payments in connection with indemnification under this Section 5.2,
provided that the indemnified Person shall have given a written undertaking to
reimburse the Trust in the event it is subsequently determined that he or she is
not entitled to such indemnification.
SECTION V.3 LIABILITY OF HOLDERS; INDEMNIFICATION.
The Trust shall indemnify and hold each Holder harmless from and against any
claim or liability to which such Holder may become subject solely by reason of
his or her being or having been a Holder and not because of such Holders acts or
omissions or for some other reason, and shall reimburse such Holder for all
legal and other expenses reasonably incurred by him or her in connection with
any such claim or liability (upon proper and timely request by the Holder);
provided, however, that no Holder shall be entitled to indemnification by any
series established in accordance with Section 8.8 unless such Holder is a Holder
of Interests of such series. The rights accruing to a Holder under this Section
5.3 shall not exclude any other right to which such Holder may be lawfully
entitled, nor shall anything herein contained restrict the right of the Trust to
indemnify or reimburse a Holder in any appropriate situation even though not
specifically provided herein.
SECTION V.4 NO BOND REQUIRED OF TRUSTEES.
No Trustee shall, as such, be obligated to give any bond or surety or other
security for the performance of any of his or her duties hereunder.
SECTION V.5 NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC.
No purchaser, lender, or other Person dealing with the Trustees or any officer,
employee or agent of the Trust shall be bound to make any inquiry concerning the
validity of any transaction purporting to be made by the Trustees or by said
officer, employee or agent or be liable for the application of money or property
paid, loaned, or delivered to or on the order of the Trustees or of said
officer, employee or agent. Every obligation, contract, instrument, certificate
or other interest or undertaking of the Trust, and every other act or thing
whatsoever executed in connection with the Trust, shall be conclusively taken to
have been executed or done by the executors thereof only in their capacity as
Trustees, officers, employees or agents of the Trust. Every written obligation,
contract, instrument, certificate or other interest or undertaking of the Trust
made by the Trustees or by any officer, employee or agent of the Trust, in his
or her capacity as such, shall contain an appropriate recital to the effect that
the Trustee, officer, employee and agent of the Trust shall not personally be
bound by or liable thereunder, nor shall resort be had to their private property
or the private property of the Holders for the satisfaction of any obligation or
claim thereunder, and appropriate references shall be made therein to the
Declaration, and may contain any further recital which they may deem
appropriate, but the omission of such recital shall not operate to impose
personal liability on any of the Trustees, officers, employees or agents of the
Trust. The Trustees may maintain insurance for the protection of the Trust
Property, Holders, Trustees, officers, employees and agents in such amount as
the Trustees shall deem advisable.
SECTION V.6 RELIANCE ON EXPERTS, ETC.
Each Trustee and officer or employee of the Trust shall, in the performance of
his or her duties, be fully and completely justified and protected with regard
to any act or any failure to act resulting from reliance in good faith upon the
books of account or other records of the Trust, upon an opinion of counsel, or
upon reports made to the Trust by any of its. officers or employees or by any
Investment Adviser, Administrator, accountant, appraiser or other experts or
consultants selected with reasonable care by the Trustees, officers or employees
of the Trust, regardless of whether such counsel or expert may also be a
Trustee.
SECTION V.7 ASSENT TO DECLARATION.
Every Holder, by virtue of having become a Holder in accordance with the terms
of this Declaration, shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto.
ARTICLE VI. INTERESTS IN THE TRUST
SECTION VI.1 INTERESTS.
The beneficial interests in the property of the Trust shall consist of an
unlimited number of Interests. No certificates certifying the ownership of
Interests need be issued except as the Trustees may otherwise determine from
time to time.
SECTION VI.2 RIGHTS OF HOLDERS.
The ownership of the Trust Property of every description and the right to
conduct any business hereinbefore described are vested exclusively in the Trust
or the Trustees, and the Holders shall have no right or title therein other than
the beneficial interest conferred by their Interests and they shall have no
right to call for any partition or division of any property, profits or rights
of the Trust. The Interests shall be personal property giving only the rights
specifically set forth in this Declaration.
SECTION VI.3 REGISTER OF INTERESTS.
A register shall be kept by the Trust under the direction of the Trustees which
shall contain the names and addresses of the Holders and Interests held by each
Holder. Each such register shall be conclusive as to the identity of the Holders
of the Trust and the Persons who shall be entitled to payments of distributions
or otherwise to exercise or enjoy the rights of Holders. No Holder shall be
entitled to receive payment of any distribution, nor to have notice given to it
as herein provided, until it has given its address to such officer or agent of
the Trustees as shall keep the said register for entry thereon.
SECTION VI.4 NOTICES
Any and all notices to which any Holder hereunder may be entitled and any and
all communications shall be deemed duly served or given if mailed, postage
prepaid, addressed to any Holder of record at its last known address as recorded
on the register of the Trust.
SECTION VI.5 NO PRE-EMPTIVE RIGHTS; DERIVATIVE SUITS.
Holders shall have no preemptive or other right to subscribe to any additional
Interests or other securities issued by the Trust or any series thereof. No
action may be brought by a Holder on behalf of the Trust unless Holders owning
no less than 10% of the then outstanding Interests join in the bringing of such
action.
SECTION VI.6 NO APPRAISAL RIGHTS.
Holders shall have no right to demand payment for their Interests or to any
other rights of dissenting Holders in the event the Trust participates in any
transaction which would give rise to appraisal or dissenters rights by a holder
of a corporation organized under the General Corporation Law of Delaware, or
otherwise.
ARTICLE VII. PURCHASES AND REDEMPTIONS
SECTION VII.1 PURCHASES.
The Trustees, in their discretion, may, from time to time, without a vote of the
Holders, permit the purchase of Interests by such party or parties (or increase
in the interests of a Holder) and for such type of consideration, including,
without limitation, cash or property, at such time or times (including, without
limitation each business day), and on such terms as the Trustees may deem best,
and may in such manner acquire other assets (including, without limitation, the
acquisition of assets subject to, and in connection with the assumption of
liabilities) and businesses.
SECTION VII.2 REDEMPTION BY HOLDER.
Each Holder of Interests of the Trust or any series thereof shall have the right
at such times as may be permitted by the Trust to require the Trust to redeem
all or any part of his or her Interests of the Trust or series thereof at a
redemption price equal to the net asset value per Interest of the Trust or
series thereof next determined in accordance with Section 7.4 hereof after the
Interests are properly tendered for redemption, subject to any contingent
deferred sales charge in effect at the time of redemption. Payment of the
redemption price shall be in cash; provided, however, that if the Trustees
determine, which determination shall be conclusive, that conditions exist which
make payment wholly in cash unwise or undesirable, the Trust may, subject to the
requirements of the 1940 Act, make payment wholly or partly in securities or
other assets belonging to the Trust or series thereof of which the Interests
being redeemed are part of the value of such securities or assets used in such
determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the Holders of Interests of the
Trust or series thereof to require the Trust to redeem Shares of the Trust of
series during any period or at any time when and to the extent permissible under
the 1940 Act.
SECTION VII.3 REDEMPTION BY TRUST.
Each Interest of the Trust or series thereof that has been established and
designated is subject to redemption by the Trust at the redemption price which
would be applicable if such Interest was then being redeemed by the Holder
pursuant to Section 7.2 hereof: (i) at any time, if the Trustees determine in
their sole discretion and by majority vote that failure to so redeem may have
materially adverse consequences to the Trust or any series or to the Holders of
the Interests of the Trust or any series thereof, or (ii) upon such other
conditions as may from time to time be determined by the Trustees and set forth
in the then current Prospectus of the Trust with respect to maintenance of
Holder accounts of a minimum amount. Upon such redemption the Holders of the
Interests so redeemed shall have no further right with respect thereto other
than to receive payment of such redemption price.
SECTION VII.4 NET ASSET VALUE.
The net asset value per Interest of any series shall be (i) in the case of a
series whose Interests are not divided into classes, the quotient obtained by
dividing the value of the net assets of that series (being the value of the
assets belonging to that series less the liabilities belonging to that series)
by the total number of Interests of that series outstanding, and (ii) in the
case of a class of Interests of a series whose Interests are divided into
classes, the quotient obtained by dividing the value of the net assets of that
series allocable to such class (being the value of the assets belonging to that
series allocable to such class less the liabilities belonging to such class) by
the total number of Interests of such class outstanding; all determined in
accordance with the methods and procedures, including without limitation those
with respect to rounding, established by the Trustees from time to time.
The Trustees may determine to maintain the net asset value per Interest of
any series at a designated constant dollar amount and in connection therewith
may adopt procedures consistent with the 1940 Act for continuing declarations of
income attributable to that series as dividends payable in additional Interests
of that series at the designated constant dollar amount and for the handling of
any losses attributable to that series.
ARTICLE VIII. HOLDERS
SECTION VIII.1 MEETINGS OF HOLDERS.
Meetings of the Holders may be called at any time by a majority of the Trustees
and shall be called by any Trustee upon written request of Holders holding, in
the aggregate, not less than 10% of the Interests, such request specifying the
purpose or purposes for which such meeting is to be called. Any such meeting
shall be held within or without the State of Delaware on such day and at such
time as the Trustees shall designate. Holders of one-third of the Interests in
the Trust, present in person or by proxy, shall constitute a quorum for the
transaction of any business, except as may otherwise be required by the 1940 Act
or other applicable law or by this Declaration or the By-Laws of the Trust. If a
quorum is present at a meeting, an affirmative vote by the Holders present, in
person or by proxy, holding more than 50% of the total Interests of the Holders
present, either in person or by proxy, at such meeting constitutes the action of
the Holders, unless the 1940 Act, other applicable law, this Declaration or the
By-Laws of the Trust requires a greater number of affirmative votes.
SECTION VIII.2 NOTICE OF MEETINGS.
Written or printed notice of all meetings of the Holders, stating the time,
place and purposes of the meeting, shall be given by the Trustees either by
presenting it personally to a Holder, leaving it at his or her residence or
usual place of business, or by sending it via United States mail or by
electronic transmission to a Holder, at his or her registered address, at least
10 business days and not more than 90 business days before the meeting. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail addressed to the Holder at his or her address as it is registered
with the Trust, with postage thereon prepaid. At any such meeting, any business
properly before the meeting may be considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION VIII.3 RECORD DATE FOR MEETINGS.
For the purpose of determining the Holders who are entitled to notice of any
meeting and to vote at any meeting, or to participate in any distribution, or
for the purpose of any other action, the Trustees may from time to time fix a
date, not more than 90 calendar days prior to the date of any meeting of the
Holders or payment of distributions or other action, as the case may be, as a
record date for the determination of the persons to be treated as holders of
record for such purposes. If the Trustees shall divide the Trust Property into
two or more series in accordance with Section 8.8 herein, nothing in this
Section 8.3 shall be construed as precluding the Trustees from setting different
record dates for different series.
SECTION VIII.4 PROXIES, ETC.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Secretary, or with such other officer or agent of
the Trust as the Secretary may direct, for verification prior to the time at
which such vote shall be taken.
(a) Pursuant to a resolution of a majority of the Trustees, proxies
may be solicited in the name of one or more Trustees or one or more of the
officers of the Trust. Only Holders of record shall be entitled to vote. Each
Holder shall be entitled to a vote proportionate to its Interest in the Trust.
(b) When Interests are held jointly by several persons, any one of
them may vote at any meeting in person or by proxy in respect of such Interest,
but if more than one of them shall be present at such meeting in person or by
proxy, and such joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such Interest.
(c) A proxy purporting to be executed by or on behalf of a Holder
shall be deemed valid unless challenged at or prior to its exercise, and the
burden of proving invalidity shall rest on the challenger. If the Holder is a
minor or a person of unsound mind, and subject to guardianship or to the legal
control of any other person regarding the charge or management of its Interest,
he or she may vote by his or her guardian or such other person appointed or
having such control, and such vote may be given in person or by proxy.
SECTION VIII.5 REPORTS.
The Trustees shall cause to be prepared, at least annually, a report of
operations containing a balance sheet and statement of income and undistributed
income of the Trust prepared in conformity with generally accepted accounting
principles and an opinion of an independent public accountant on such financial
statements. The Trustees shall, in addition, furnish to the Holders at least
semi-annually interim reports containing an unaudited balance sheet as of the
end of such period and an unaudited statement of income and surplus for the
period from the beginning of the current Fiscal Year to the end of such period.
SECTION VIII.6 INSPECTION OF RECORDS.
The records of the Trust shall be open to inspection by Holders during normal
business hours and for any purpose not harmful to the Trust.
SECTION VIII.7 VOTING POWERS.
The Holders shall have power to vote only (a) for the election of Trustees as
contemplated by Section 2.2 hereof, (b) with respect to any investment advisory
contract as contemplated by Section 4.1 hereof, (c) with respect to termination
of the Trust as provided in Section 9.2 hereof, (d) with respect to any merger,
consolidation or sale of assets as provided in Section 9.4 hereof, (e) with
respect to incorporation of the Trust to the extent and as provided in Section
9.5 hereof, (f) with respect to such additional matters relating to the Trust as
may be required by the 1940 Act, DBTA, or any other applicable law, the
Declaration, the By-Laws or any registration of the Trust with the Commission
(or any successor agency) or any state, or as and when the Trustees may consider
necessary or desirable.
Each Holder shall be entitled to vote based on the ratio its Interest bears
to the Interests of all Holders entitled to vote. Until Interests are issued,
the Trustees may exercise all rights of Holders and may take any action required
by law, the Declaration or the By-Laws to be taken by Holders, The By-Laws may
include further provisions for Holder's votes and meetings and related matters
not inconsistent with this Declaration.
SECTION VIII.8 SERIES OF INTERESTS.
The Trustees shall have the power to divide the Trust Property into two or more
series. The following provisions shall be applicable to such series and any
further series that may from time to time be established and designated by the
Trustees:
(a) All consideration received by the Trust for the issue or sale of
Interests of a particular series together with all Trust Property in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to that series for all purposes, subject only to the rights
of creditors of such series and except as may otherwise be required by
applicable tax laws, and shall be so recorded upon the books of account of the
Trust. In the event that there is any Trust Property, or any income, earnings,
profits, and proceeds thereof, funds, or payments which are not readily
identifiable as belonging to any particular series, the Trustees shall allocate
them among any one or more of the series established and designated from time to
time in such manner and on such basis as they, in their sole discretion, deem
fair and equitable. Each such allocation by the Trustees shall be conclusive and
binding upon the Holders of all Interests for all purposes.
(b) The Trust Property belonging to each particular series shall be
charged with the liabilities of the Trust in respect of that series and all
expenses, costs, charges and reserves attributable to that series, and any
general liabilities, expenses, costs, charges or reserves of the Trust which are
not readily identifiable as belonging to any particular series shall be
allocated and charged by the Trustees to and among any one or more of the series
established and designated from time to time in such manner and on such basis as
the Trustees in their sole discretion deem fair and equitable. Each allocation
of liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Holders of all interests for all purposes. 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 Holders. Without limitation of the foregoing provisions of this
Section, but subject to the right of the Trustees in their discretion to
allocate general liabilities, expenses, costs, charges or reserves as herein
provided, the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to a particular series shall be
enforceable against the assets of such series only, and not against the assets
of any other series. Notice of this limitation on inter-series liabilities may,
in the Trustees sole 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 DBTA, and
upon the giving of such notice in the certificate of trust, the statutory
provisions of Section 3804 of the DBTA relating to limitations on interseries
liabilities (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. Every note, bond, contract or other undertaking issued by or on
behalf of a particular series shall include a recitation limiting the obligation
represented thereby to that series and its assets.
(c) Dividends and distributions on Interests of a particular series
may be paid with such frequency as the Trustees may determine, which may be
daily or otherwise, pursuant to a standing resolution or resolution adopted only
once or with such frequency as the Trustees may determine, to the Holders of
Interests in that series, from such of the income and capital gains, accrued or
realized, from the Trust Property belonging to that series as the Trustees may
determine, after providing for actual and accrued liabilities belonging to that
series. All dividends and distributions on Interests in a particular series
shall be distributed pro rata to the Holders of Interests in that series in
proportion to the total outstanding Interests in that series held by such
Holders at the date and time of record establishment for the payment of such
dividends or distribution.
(d) The Interests in a series of the Trust shall represent beneficial
interests in the Trust Property belonging to such series. Each Holder of
Interests in a series shall be entitled to receive its pro rata share of
distributions of income and capital gains made with respect to such series. Upon
reduction or withdrawal of its Interests or indemnification for liabilities
incurred by reason of being or having been a Holder of Interests in a series,
such Holder shall be paid solely out of the funds and property of such series of
the Trust. Upon liquidation or termination of a series of the Trust, Holders of
Interests in such series shall be entitled to receive a pro rata share of the
Trust Property belonging to such series. A Holder of Interests in a particular
series of the Trust shall not be entitled to participate in a derivative or
class action lawsuit on behalf of any other series or the Holders of Interests
in any other series of the Trust.
(e) Notwithstanding any other provision hereof, if the Trust Property
has been divided into two or more series, then on any matter submitted to a vote
of Holders of Interests in the Trust, all Interests then entitled to vote shall
be voted by individual series, except that (1) when required by the 1940 Act,
Interests shall be voted in the aggregate and not by individual series, and (2)
when the Trustees have determined that the matter affects only the interests of
Holders of Interests in a limited number of series, then only the Holders of
Interests in such series shall be entitled to vote thereon. Except as otherwise
provided in this Article VIII, the Trustees shall have the power to determine
the designations, preferences, privileges, limitations and rights, including
voting and dividend rights, of each series of Interests.
(f) The establishment and designation of any series of Interests other
than those set forth above shall be effective upon the execution by a majority
of the then Trustees of an instrument setting forth such establishment and
designation and the relative rights and preferences of such series, or as
otherwise provided in such instrument. At any time that there are no Interests
outstanding of any particular series previously established and designated, the
Trustees may by an instrument executed by a majority of their number abolish
that series and the establishment and designation thereof. Each instrument
referred to in this paragraph shall have the status of an amendment to this
Declaration.
(g) If the Trust Property has been divided into two or more series,
then Section 9.2 of this Agreement shall apply also with respect to each such
series as if such series were a separate trust.
(h) The Trustees shall be authorized to issue an unlimited number of
Interests of each series.
(i) Subject to compliance with the requirements of the 1940 Act, the
Trustees shall have the authority to provide that Holders of Interests of any
series shall have the right to convert said Interests into one or more other
series in accordance with such requirements and procedures as may be established
by the Trustees.
SECTION VIII.9 HOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Holders may be taken without notice and without
a meeting if Holders holding more than 50% of the total Interests entitled to
vote (or such larger proportion thereof as shall be required by any express
provision of this Declaration) shall consent to the action in writing and the
written consents shall be filed with the records of the meetings of Holders.
Such consents shall be treated for all purposes as votes taken at a meeting of
Holders.
SECTION VIII.10 HOLDER COMMUNICATIONS.
Whenever ten or more Holders who have been such for at least six months
preceding the date of application, and who hold in the aggregate at least 1% of
the total Interests, shall apply to the Trustees in writing, stating that they
wish to communicate with other Holders with a view to obtaining signatures to a
request for a meeting of Holders and accompanied by a form of communication and
request which they wish to transmit, the Trustees shall within five business
days after receipt of such application either (1) afford to such applicants
access to a list of the names and addresses of all Holders as recorded on the
books of the Trust; or (2) inform such applicants as to the approximate number
of Holders, and the approximate cost of transmitting to them the proposed
communication and form of request.
If the Trustees elect to follow the course specified in clause (2) above,
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be transmitted and of the reasonable expenses of
transmission, shall, with reasonable promptness, transmit, by United States mail
or by electronic transmission, such material to all Holders at their addresses
as recorded on the books, unless within five business days after such tender the
Trustees shall transmit, by United States mail or by electronic transmission, to
such applicants and file with the Commission, together with a copy of the
material to be transmitted, a written statement signed by at least a majority of
the Trustees to the effect that in their opinion either such material contains
untrue statements of fact or omits to state facts necessary to make the
statements contained therein not misleading, or would be in violation of
applicable law, and specifying the basis of such opinion. The Trustees shall
thereafter comply with any order entered by the Commission and the requirements
of the 1940 Act and the Securities Exchange Act of 1934.
ARTICLE IX. DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS; ETC.
SECTION IX.1 DURATION.
Subject to possible termination in accordance with the provisions of Section
9.2, the Trust created hereby shall continue perpetually pursuant to Section
3808 of DBTA.
SECTION IX.2 TERMINATION OF TRUST.
(a) The Trust may be terminated (i) by the affirmative vote of the
Holders of not less than two-thirds of the Interests in the Trust at any meeting
of the Holders, or (ii) by an instrument in writing, without a meeting, signed
by a majority of the Trustees and consented to by the Holders of not less than
two-thirds of such Interests, or (iii) by the Trustees by written notice to the
Holders.
Upon any such termination:
(i) The Trust shall carry on no business except for the purpose
of winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of the
Trust and all of the powers of the Trustees under this Declaration shall
continue until the affairs of the Trust shall have been wound up, including the
power to fulfill or discharge the contracts of the Trust, collect its assets,
sell, convey, assign, exchange, or otherwise dispose of all or any part of the
remaining Trust Property to one or more Persons at public or private sale for
consideration which may consist in whole or in part of cash, securities or other
property of any kind, discharge or pay its liabilities, and do all other acts
appropriate to liquidate its business; provided that any sale, conveyance,
assignment, exchange, or other disposition of all or substantially all of the
Trust Property shall require approval of the principal terms of the transaction
and the nature and amount of the consideration by the Holders by a Majority
Interests Vote.
(iii) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and refunding
agreements, as they deem necessary for their protection, the Trustees may
distribute the remaining Trust Property, in cash or in kind or partly each,
among the Holders according to their respective rights.
(b) Upon termination of the Trust and distribution to the Holders as
herein provided, a majority of the Trustees shall execute and lodge among the
records of the Trust an instrument in writing setting forth the fact of such
termination and file a certificate of cancellation in accordance with Section
3810 of the DBTA. Upon termination of the Trust, the Trustees shall thereon be
discharged from all further liabilities and duties hereunder, and the rights and
interests of all Holders shall thereupon cease.
SECTION IX.3 AMENDMENT PROCEDURE.
(a) All rights granted to the Holders under this Declaration of Trust
are granted subject to the reservation of the right of the Trustees to amend
this Declaration of Trust as herein provided, except as set forth herein to the
contrary. Subject to the foregoing, the provisions of this Declaration of Trust
(whether or not related to the rights of Holders) may be amended at any time, so
long as such amendment is not in contravention of applicable law, including the
1940 Act, by an instrument in writing signed by a majority of the then Trustees
(or by an officer of the Trust pursuant to the vote of a majority of such
Trustees). Any such amendment shall be effective as provided in the instrument
containing the terms of such amendment or, if there is no provision therein with
respect to effectiveness, upon the execution of such instrument and of a
certificate (which may be a part of such instrument) executed by a Trustee or
officer of the Trust to the effect that such amendment has been duly adopted.
(b) No amendment may be made, under Section 9.4 (a) above, which would
change any rights with respect to any Interest in the Trust by reducing the
amount payable thereon upon liquidation of the Trust, by repealing the
limitations on personal liability of any Holder or Trustee, or by diminishing or
eliminating any voting rights pertaining thereto, except with a Majority
Interests Vote.
(c) A certification signed by a majority of the Trustees setting forth
an amendment and reciting that it was duly adopted by the Holders or by the
Trustees as aforesaid or a copy of the Declaration, as amended, and executed by
a majority of the Trustees, shall be conclusive evidence of such amendment when
lodged among the records of the Trust.
(d) Notwithstanding any other provision hereof, until such time as
Interests are first sold, this Declaration may be terminated or amended in any
respect by the affirmative vote of a majority of the Trustees or by an
instrument signed by a majority of the Trustees.
SECTION IX.4 MERGER, CONSOLIDATION AND SALE OF ASSETS.
The Trust, or any series thereof, may merge or consolidate with any other
corporation, association, trust or other organization or may sell, lease or
exchange all or substantially all of its property, including its good will, upon
such terms and conditions and for such consideration when and as authorized by
no less than a majority of the Trustees and by a Majority Interests Vote of the
Trust or such series, as the case may be, or by an instrument or instruments in
writing without a meeting, consented to by the Holders of not less than 50% of
the total Interests of the Trust or such series, as the case may be, and any
such merger, consolidation, sale, lease or exchange shall be deemed for all
purposes to have been accomplished under and pursuant to the statutes of the
State of Delaware. In accordance with Section 3815(f) of DBTA, an agreement of
merger or consolidation may effect any amendment to the Declaration or By-Laws
or effect the adoption of a new declaration of trust or by-laws of the trust if
the Trust is the surviving or resulting business trust. A certificate of merger
or consolidation of the Trust shall be signed by a majority of the Trustees.
SECTION IX.5 INCORPORATION.
Upon a Majority Interests Vote, the Trustees may cause to be organized or assist
in organizing a corporation or corporations under the laws of any jurisdiction
or any other trust, partnership, association or other organization to take over
all of the Trust Property or to carry on any business in which the Trust shall
directly or indirectly have any interest, and to sell, convey and transfer the
Trust Property to any such corporation, trust, association or organization in
exchange for the equity interests thereof or otherwise, and to lend money to,
subscribe for the equity interests of, and enter into any contracts with any
such corporation, trust, partnership, association or organization, or any
corporation, partnership, trust, association or organization in which the Trust
holds or is about to acquire equity interests. The Trustees may also cause a
merger or consolidation between the Trust or any successor thereto and any such
corporation, trust, partnership, association or other organization if and to the
extent permitted by law, as provided under the law then in effect. Nothing
contained herein shall be construed as requiring approval of the Holders for the
Trustees to organize or assist in organizing one or more corporations, trusts,
partnerships, associations or other organizations and selling, conveying or
transferring a portion of the Trust Property to such organizations or entities.
ARTICLE X. MISCELLANEOUS
SECTION X.1 CERTIFICATE OF DESIGNATION; AGENT FOR SERVICE OF PROCESS.
The Trust shall file, in accordance with Section 3812 of DBTA, in the office of
the Secretary of State of Delaware, a certificate of trust, in the form and with
such information required by Section 3810 by DBTA and executed in the manner
specified in Section 3811 of DBTA. In the event the Trust does not have at least
one Trustee qualified under Section 3807(a) of DBTA, then the Trust shall comply
with Section 3807(b) of DBTA by having and maintaining a registered office in
Delaware and by designating a registered agent for service of process on the
Trust, which agent shall have the same business office as the Trusts registered
office. The failure to file any such certificate, to maintain a registered
office, to designate a registered agent for service of process, or to include
such other information shall not affect the validity of the establishment of the
Trust, the Declaration, the By-Laws or any action taken by the Trustees, the
Trust officers or any other Person with respect to the Trust except insofar as a
provision of the DBTA would have governed, in which case the Delaware common law
governs.
SECTION X.2 GOVERNING LAW.
This Declaration is executed by all of the Trustees and delivered with reference
to DBTA and the laws of the State of Delaware, and the rights of all parties and
the validity and construction of every provision hereof shall be subject to and
construed according to DBTA and the laws of the State of Delaware (unless and to
the extent otherwise provided for and/or preempted by the 1940 Act or other
applicable federal securities laws); provided, however, that there shall not be
applicable to the Trust, the Trustees or this Declaration (a) the provisions of
Section 3540 of Title 12 of the Delaware Code or (b) any provisions of the laws
(statutory or common) of the State of Delaware (other than the DBTA) pertaining
to trusts which are inconsistent with the rights, duties, powers, limitations or
liabilities of the Trustees set forth or referenced in this Declaration.
SECTION X.3 COUNTERPARTS.
This Declaration may be simultaneously executed in several counterparts, each of
which shall be deemed to be an original, and such counterparts, together, shall
constitute one and the same instrument, which shall be sufficiently evidenced by
any such original counterpart.
SECTION X.4 RELIANCE BY THIRD PARTIES.
Any certificate executed by an individual who, according to the records of the
Trust or of any recording office in which this Declaration may be recorded,
appears to be a Trustee hereunder, certifying to (a) the number or identity of
Trustees or Holders, (b) the due authorization of the execution of any
instrument or writing, (c) the form of any vote passed at a meeting of Trustees
or Holders, (d) the fact that the number of Trustees or Holders present at any
meeting or executing any written instrument satisfies the requirements of this
Declaration, (e) the form of any By-Laws adapted by or the identity of any
officers elected by the Trustees, or (f) the existence of any fact or facts
which in any manner relate to the affairs of the Trust, shall be conclusive
evidence as to the matters so certified in favor of any person dealing with the
Trustees and their successors.
SECTION X.5 PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the DBTA, or with other applicable
laws and regulations, the conflicting provisions shall be deemed never to have
constituted a part of this Declaration; provided, however, that such
determination shall not affect any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration in any jurisdiction.
SECTION X.6 TRUST ONLY.
It is the intention of the Trustees to create only a business trust under DBTA
with the relationship of Trustee and beneficiary between the Trustees and each
Holder from time to time. 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 Delaware business trust
except to the extent such trust is deemed to constitute a corporation under the
Code and applicable state tax laws. Nothing in this Declaration of Trust shall
be construed to make the Holders, either by themselves or with the Trustees,
partners or members of a joint stock association.
SECTION X.7 WITHHOLDING.
Should any Holder be subject to withholding pursuant to the Code or any other
provision of law, the Trust shall withhold all amounts otherwise distributable
to such Holder as shall be required by law and any amounts so withheld shall be
deemed to have been distributed to such Holder under this Declaration of Trust.
If any sums are withheld pursuant to this provision, the Trust shall remit the
sums so withheld to and file the required forms with the Internal Revenue
Service, or other applicable government agency.
SECTION X.8 HEADINGS AND CONSTRUCTION.
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.
IN WITNESS WHEREOF the undersigned has caused this Amended and Restated
Declaration of Trust to be executed as of the 2nd day June 2000.
/S/ KENDRICK W. KAM
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Kendrick Kam, Trustee
/S/ ARTHUR ROTH
--------------------
Arthru Roth, Trustee
/S/ WILLIAM SCILACCI
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William Scilacci, Trustee
