Filed with the Securities and Exchange Commission on March 27, 2000
1933 Act Registration File No. 333-_____
1940 Act File No. 811-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |X|
Pre-Effective Amendment No. |_|
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Post-Effective Amendment No. |_|
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and
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 |X|
Amendment No. |_|
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CULLEN FUNDS TRUST
(Exact Name of Registrant as Specified in Charter)
645 Fifth Avenue
New York, NY 10022
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, including Area Code: (212) 843-0506
Brooks Cullen
645 Fifth Avenue
New York, NY 10022
(Name and Address of Agent for Service)
Copies of all communications to:
Suzanne E. Riley, Esq.
Firstar Mutual Fund Services, LLC
615 East Michigan Street, 2nd Floor
Milwaukee, WI 53202
Approximate Date of Proposed Public Offering: As soon as practical after the
effective date of this Registration Statement.
It is proposed that this filing will become effective (check appropriate box)
immediately upon filing pursuant to paragraph (b)
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on ___________ pursuant to paragraph (b)
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60 days after filing pursuant to paragraph (a)(1)
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on ____________ pursuant to paragraph (a)(1)
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75 days after filing pursuant to paragraph (a)(2)
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on ____________ pursuant to paragraph (a)(2) of Rule 485.
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Title of securities being registered: Cullen Value Fund
CULLEN VALUE FUND
A series of Cullen Funds Trust
_______, 2000
The Securities and Exchange Commission ("SEC") has not approved or disapproved
of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
TABLE OF CONTENTS
YOUR INVESTMENT................................................................1
WHAT ARE THE FUND'S GOALS?..................................................1
WHAT ARE THE FUND'S PRINCIPAL INVESTMENT STRATEGIES?........................1
WHAT ARE THE MAIN RISKS OF INVESTING IN THE FUND?...........................1
WHO SHOULD INVEST IN THE FUND?..............................................2
PERFORMANCE INFORMATION.....................................................2
WHAT ARE THE FUND'S FEES AND EXPENSES?......................................2
WHO MANAGES THE FUND?.......................................................4
OTHER IMPORTANT INFORMATION YOU SHOULD KNOW....................................5
FINANCIAL HIGHLIGHTS........................................................5
ADDITIONAL INFORMATION ON INVESTMENT POLICIES AND RISKS.....................5
YOUR ACCOUNT...................................................................7
SHARE PRICE.................................................................7
BUYING SHARES...............................................................8
SELLING SHARES..............................................................9
ADDITIONAL POLICIES........................................................11
DISTRIBUTIONS AND TAXES....................................................11
SHAREHOLDER REPORTS AND CONFIRMATIONS......................................12
RESERVED RIGHTS............................................................12
FOR MORE INFORMATION.......................................................15
In this prospectus, the "Adviser" refers to Cullen Capital Management LLC, the
investment adviser for the Cullen Value Fund (the "Fund"), a series of the
Cullen Funds Trust (the "Trust").
YOUR INVESTMENT
WHAT ARE THE FUND'S GOALS?
The Fund seeks long-term capital growth. Current income is a secondary
objective.
WHAT ARE THE FUND'S PRINCIPAL INVESTMENT STRATEGIES?
The Fund invests primarily in common stocks of medium- and large-capitalization
companies. The Adviser generally selects stocks of companies that have:
o a below average price/earnings ratio as compared to that of the Standard &
Poor's 500 Stock Index; and
o above average projected earnings growth.
The Fund generally invests substantially all of its assets in stocks. The Fund
invests roughly similar amounts of its assets in each stock in the portfolio.
This approach avoids the overweighting of any individual security being
purchased. The Adviser may sell portfolio stocks when they are no longer
attractive based on their growth potential or price.
The Fund may invest generally up to 20% of its assets in foreign securities.
These investments are generally made in American Depository Receipts which trade
on U.S. exchanges.
WHAT ARE THE MAIN RISKS OF INVESTING IN THE FUND?
GENERAL STOCK RISKS
The Fund's major risks are those of investing in the stock market. This means
the Fund may experience sudden, unpredictable declines in value, as well as
periods of poor performance. Because stock values go up and down, the value of
the Fund's shares may go up and down. You could lose money investing in the
Fund.
MEDIUM-CAPITALIZATION COMPANIES
The Fund may invest in the stocks of medium-capitalization companies.
Medium-capitalization companies often have narrower markets and more limited
managerial and financial resources than larger, more established companies. As a
result, their performance can be more volatile and they face greater risk of
business reversals which could increase the volatility of the Fund's portfolio.
VALUE STYLE INVESTING
Different types of equity investment strategies tend to shift in and out of
favor depending on market and economic conditions, and the performance resulting
from the Fund's "value" investment style may sometimes be lower than that of
other types of equity funds.
FOREIGN SECURITIES
Foreign investments involve additional risks, which include currency
exchange-rate fluctuations, political and economic instability, differences in
financial reporting standards, and less-strict regulation of securities markets.
WHO SHOULD INVEST IN THE FUND?
The Fund is appropriate for investors who are comfortable with the risks
described in this prospectus and whose financial goals are five years or more in
the future. The Fund is not appropriate for investors concerned primarily with
principal stability.
PERFORMANCE INFORMATION
Because the Fund is new, no performance information for the Fund is included in
this prospectus.
WHAT ARE THE FUND'S FEES AND EXPENSES?
As an investor, you pay certain fees and expenses in connection with the Fund,
which are described in the table below. There are no sales loads associated with
an investment in the Fund. Fund operating expenses are paid out of the assets of
the Fund, so their effect is included in the Fund's share price.
ANNUAL FUND OPERATING EXPENSES
- ------------------------------
(expenses that are deducted from Fund assets)
Management Fee 1.00%
Distribution (12b-1) Fees a 0.25%
Other Expenses b 0.75%
Total Annual Fund Operating Expenses c 2.00%
a The Fund has adopted a Rule 12b-1 plan, which allows the Fund to pay
distribution fees for the sale and distribution of its shares. The maximum
level of distribution expenses is 0.25% per year of the Fund's average
daily net asset value. As these fees are paid out of the Fund's assets on
an on-going basis, over time these fees will increase the cost of your
investment and may cost you more than paying other types of sales charges.
b These expenses include custodian, transfer agency and other customary Fund
expenses.
c The Adviser has contractually agreed to limit the Total Annual Fund Operating
Expenses to no more that 2.00% at least through _______, 2001. To the extent
that the Adviser reimburses or waives fees, it may seek payment or
reimbursement for three years after the year in which fees were waived or
reimbursed. The Fund will not make such payments to the Adviser if the Total
Annual Fund Operating Expenses exceed the expense limits in effect at the
time these waivers and/or reimbursements are proposed.
EXAMPLE
This example is intended to help you compare the cost of investing in the Fund
with the cost of investing in other mutual funds. The example assumes that you
invest $10,000 in the Fund and reinvest all dividends and distributions for the
time periods indicated, and then redeem all of your shares at the end of those
periods. The example also assumes that your investment has a 5% return each year
and that the Fund's operating expenses remain the same. Although your actual
costs may be higher or lower, based on these assumptions, your costs would be:
1 Year 3 Years
$ $
WHO MANAGES THE FUND?
INVESTMENT ADVISER
The Fund's investment adviser is Cullen Capital Management LLC, located at 645
Fifth Avenue, New York, NY 10022. Subject to the general supervision of the
Trust's Board of Trustees, the Adviser is responsible for the day to day
investment decisions of the Fund in accordance with the Fund's investment
objective and policies. In exchange for these services, the Adviser receives an
annual management fee, which is calculated daily and paid monthly, according to
the average daily net assets of the Fund. The Adviser was organized in
_________, 2000 as a registered investment adviser.
The Advisory Agreement between the Fund and the Adviser provides that the annual
management fee for the Adviser will be 1.00% of the Fund's average daily net
assets. However, the Adviser has contractually agreed with the Fund to waive its
fees and absorb expenses to the extent that the Fund's total annual operating
expenses exceed 2.00% of the Fund's net assets. This contractual agreement for
expense waivers expires on ________, 2001.
PORTFOLIO MANAGER
James P. Cullen is the portfolio manager of the Fund. Mr. Cullen has been in the
investment management business for more than 30 years, and is the President and
founder of Schafer Cullen Capital Management, Inc., a registered investment
adviser, since December 1982. Prior to forming Schafer Cullen Capital
Management, Inc., Mr. Cullen was a Vice President of Donaldson, Lufkin &
Jenrette.
CUSTODIAN, TRANSFER AGENT, DIVIDEND DISBURSING AGENT AND FUND ACCOUNTANT
Firstar Bank, N.A. serves as custodian for the Fund's cash and securities.
Firstar Mutual Fund Services, LLC provides administrative, transfer agent,
dividend disbursing and fund accounting services to the Fund.
DISTRIBUTOR
Quasar Distributors, LLC serves as principal underwriter for the Fund and, as
such, is the agent for the distribution of shares of the Fund.
OTHER IMPORTANT INFORMATION YOU SHOULD KNOW
FINANCIAL HIGHLIGHTS
Because the Fund is new, no financial highlights are available for the Fund.
ADDITIONAL INFORMATION ON INVESTMENT POLICIES AND RISKS
The Fund invests in securities which the Adviser believes offer the possibility
of increase in value. For the most part, this means that the Fund will invest in
common stocks of medium- and large-capitalization companies having a low stock
market valuation at the time of purchase (as measured by price/earnings ratios
as compared with the average price/earnings ratio of the S&P 500 Stock Index) in
relation to investment value (as measured by prospective earnings and dividend
growth rates as compared with market averages of such rates). The Adviser then
monitors investments for price movement and earnings developments. Once a
security is purchased, the Adviser will generally hold it in the Fund's
portfolio until it no longer meets the Fund's financial or valuation criteria.
Although there may be some short-term portfolio turnover, the Adviser generally
purchases securities which it believes will appreciate in value over the long
term. However, securities may be sold without regard to the time they have been
held when, in the Adviser's opinion, investment considerations warrant such
action.
The Fund does not concentrate its investments in any particular industry or
group of industries, but diversifies its holdings among as many different
companies and industries as seems appropriate in light of conditions prevailing
at any given time.
Other than as considered appropriate for cash reserves, the Fund will generally
maintain a fully invested position in common stocks of publicly-held companies,
primarily in stocks of companies listed on a national securities exchange and
other publicly traded equity securities (common stocks or securities convertible
into common stocks). Investments may also be made in debt securities which are
convertible into equity securities and preferred stocks which are convertible
into common stocks and in warrants or other rights to purchase common stock,
which in each case are considered by the Adviser to be equity securities. The
Adviser generally does not engage in market timing by shifting the portfolio or
a significant portion thereof in or out of the market in anticipation of market
fluctuations. Although the Fund's portfolio will normally be fully invested in
equity securities as described above, a portion of its assets may be held from
time to time in cash or cash equivalents when the Adviser is unable to identify
attractive equity investments.
The Fund invests primarily in the securities of U.S. issuers, although it may
also invest generally up to 20% of its assets in securities of foreign issuers,
or depository receipts for such securities, which are traded in a U.S. market or
are available through a U.S. broker or dealer (regardless of whether traded in
U.S. dollars) and which meet the criteria for investment selection set forth
above. As a result, the Fund may be subject to additional investment risks that
are different in some respects from those experienced by a fund that invests
only in securities of U.S. domestic issuers.
Such risks include:
|X| future political and economic developments, the imposition of foreign
withholding taxes on dividend and interest income payable on the securities,
|X| the possible establishment of exchange controls,
|X| the possible seizure or nationalization of foreign investments, or
|X| the adoption of other foreign governmental restrictions which might
adversely affect the payment of amounts due with respect to such securities.
With respect to the securities of foreign issuers which are denominated in
foreign currencies, such risks also include currency exchange-rate risk.
Generally, the Fund will not purchase securities which it believes, at the time
of purchase, will be subject to exchange controls; however, there can be no
assurance that exchange control laws may not become applicable to certain of the
Fund's investments. In addition, there may be less publicly available
information about a foreign issuer than about a domestic issuer, and foreign
issuers may not be subject to the same accounting, auditing, financial record
keeping and shareholder reporting standards and requirements as domestic
issuers.
There are market risks inherent in any investment, and there is no assurance
that the primary investment objective of the Fund will be realized or that any
income will be earned. Moreover, the application of the Fund's investment
policies is basically dependent upon the Adviser's judgment. You should realize
that there are risks in any policy dependent upon judgment and that the Adviser
does not make any representation that the objectives of the Fund will be
achieved or that there may not be substantial losses in any particular
investment.
At any time the value of the Fund's shares may be more or less than your cost of
shares.
The Fund's secondary objective of current income is not a fundamental policy of
the Fund and may be changed by a vote of a majority of the Board of Trustees
without a vote of the shareholders.
YOUR ACCOUNT
SHARE PRICE
The price of a share of the Fund is called the Fund's net asset value ("NAV").
The NAV is determined as of the close of regular trading on the New York Stock
Exchange ("NYSE") (usually 4:00 p.m. Eastern time) everyday the NYSE is open.
The NAV is calculated by taking the total value of the Fund's assets,
subtracting its liabilities, and then dividing by the number of shares that have
already been issued. This is a standard calculation, and forms the basis for all
transactions involving buying, selling, or reinvesting shares.
The Fund's investments are valued according to market value. When a market quote
is not readily available, the security's value is based on fair value as
determined by the Adviser under supervision of the Trust's Board of Trustees.
Your order will be priced at the next NAV calculated after your order is
accepted by the Fund's transfer agent.
FOREIGN SECURITIES
Some of the Fund's portfolio securities may be listed on foreign exchanges that
trade on days when the Fund does not calculate NAV. As a result, the Fund's NAV
may change on days when you will not be able to purchase or redeem shares. In
addition, a foreign exchange may not value its listed securities at the same
time that the Fund calculates NAV. Events affecting the values of portfolio
securities that occur between the time a foreign exchange assigns a price to the
portfolio securities and the time when the Fund calculates NAV generally will
not be reflected in the Fund's NAV. However, these events will be reflected in
the Fund's NAV when the Adviser, under the supervision of the Board of Trustees
of the Trust, determine that they would have a material effect on the Fund's
NAV.
BUYING SHARES
MINIMUM INVESTMENTS
When buying shares, you must meet the following minimum investment requirements:
INITIAL ADDITIONAL
Regular Accounts $1,000 $100
IRAs and UGMA/UTMA accounts, Simple
IRA, SEP-IRA, 403(b)(7), Keogh, The lesser of $250 or $50
Pension Plan and Profit Sharing $25 per month
Plan Accounts
Please note...
o If you use an Automatic Investment Plan ("AIP"), the initial
investment minimum to open an account is $50 and the additional
investment minimum is $50.
o You will be charged a $12.50 annual account maintenance fee for
each IRA (or other retirement) account of up to a maximum of $25
and a $15 fee for transferring assets to another custodian or for
closing an account.
<TABLE>
<CAPTION>
METHODS OF BUYING
<S> <C>
THROUGH A You can purchase shares of the Fund through any broker/dealer organization that has a sales
BROKER/DEALER agreement with the Fund's distributor. The broker-dealer organization is responsible for
ORGANIZATION sending your purchase order to the Fund. Please keep in mind that your broker/dealer may
charge additional fees for its services.
BY MAIL To open an account, complete an account application form and send it together with your
check to the address below. To make additional investments once you have opened your
account, send your check together with the detachable form that is included with your Fund
account statement or confirmation. You may also send a letter stating the amount of your
investment with your name, the name of the Fund and your account number together with a
check to the address below. Checks should be made payable to "Cullen Value Fund." No
third party checks will be accepted. If your check is returned for any reason, a $25 fee
will be assessed against your account.
REGULAR MAIL OVERNIGHT DELIVERY
Cullen Value Fund Cullen Value Fund
c/o Firstar Mutual Fund Services, LLC c/o Firstar Mutual Fund Services, LLC
P.O. Box 701 615 E. Michigan Street, Third Floor
Milwaukee, Wisconsin 53201-0701 Milwaukee, Wisconsin 53202
NOTE:
The Fund does not consider the U.S. Postal Service or other independent delivery services
to be its agents. Therefore, when you deposit your account application form, additional
purchase request, or redemption request in the mail or use other delivery services, or
if your documents are simply in the transfer agent's post office box, that does not mean
that the Fund's transfer agent actually RECEIVED those documents.
BY TELEPHONE To make additional investments by telephone, you must check the appropriate box on your account
application form authorizing telephone purchases. If you have given authorization for telephone
transactions and your account has been open for at least 15 days, you may call the Fund toll free at
1-800-__________ to move money from your bank account to your Fund account upon request. Only
bank accounts held at U.S. institutions that are Automated Clearing House ("ACH") members may
be used for telephone transactions. For security reasons, requests by telephone will be recorded.
BY WIRE To open an account or to make additional investments by wire, call 1-800-______ to notify the
Fund of the incoming wire using the wiring instructions below:
Firstar Bank, N.A.
Milwaukee, WI 53202
ABA #: 075000022
Credit: Firstar Mutual Fund Services, LLC
Account #: __________
Further Credit: Cullen Value Fund
(your name or the title on the account)
(your account #)
THROUGH AN Once your account has been opened, you may purchase shares of the Fund through an AIP. You
AUTOMATIC can have money automatically transferred from your checking or savings account on a weekly,
INVESTMENT bi-weekly, monthly, bi-monthly or quarterly basis. To be eligible for this plan, your bank
PLAN must be a U.S. institution that is an ACH member. The Fund may modify or terminate the AIP
at any time. The first AIP purchase will take place no earlier than 15 days after the Fund's
transfer agent has received your request.
</TABLE>
SELLING SHARES
<TABLE>
<CAPTION>
METHODS OF SELLING
<S> <C>
THROUGH A If you purchased your shares through a broker/dealer or other financial organization, your
BROKER/DEALER redemption order may be placed through the same organization. The organization is responsible
ORGANIZATION for sending your redemption order to the Fund on a timely basis. Please keep in mind that your
broker/dealer may charge additional fees for its services.
BY MAIL Send your written redemption request to the address below. Your request should contain the
Fund's name, your account number and the dollar amount or the number of shares to be redeemed.
Be sure to have all shareholders sign the letter as their names appear on the account.
Additional documents are required for certain types of shareholders, such as corporations,
partnerships, executors, trustees, administrators, or guardians (i.e., corporate resolutions or
trust documents indicating proper authorization).
REGULAR MAIL OVERNIGHT DELIVERY
Cullen Value Fund Cullen Value Fund
c/o Firstar Mutual Fund Services, LLC c/o Firstar Mutual Fund Services, LLC
P.O. Box 701 615 E. Michigan Street, Third Floor
Milwaukee, Wisconsin 53201-0701 Milwaukee, Wisconsin 53202
The Fund's transfer agent may require a SIGNATURE GUARANTEE for certain redemption requests, such
as redemption requests from IRA accounts, or redemption requests made payable to a
person or an address not on record with the Fund.
BY TELEPHONE If you are authorized to perform telephone transactions (either through your account application form
or by subsequent arrangement in writing with the Fund) you may redeem as little as $500 and as much
as $50,000 by calling 1-800_________. A signature guarantee is required of all shareholders to
change or add telephone redemption privileges. For security reasons, requests by telephone will
be recorded.
BY WIRE To redeem shares by wire, call the Fund at 1-800-________ and specify the amount of money you wish to
be wired. Your bank may charge a fee to receive wired funds. The transfer agent charges a $12
outgoing wire fee.
THROUGH A If you own shares with a value of $10,000 or more, you may participate in the systematic
SYSTEMATIC withdrawal plan. The systematic withdrawal plan allows you to make automatic withdrawals from
WITHDRAWAL PLAN your Fund account at regular intervals. Money will be transferred from your Fund account to the
checking or savings account you choose on your account application form. If you expect to
purchase additional shares of the Fund, it may not be to your advantage to participate in the
systematic withdrawal plan because of the possible adverse tax consequences of making contemporaneous
purchases and redemptions.
</TABLE>
SIGNATURE GUARANTEES
Signature guarantees are designed to prevent unauthorized transactions. The
guarantor pledges that the signature presented is genuine and, unlike a notary
public, is financially responsible if it is not.
You can obtain signature guarantees from banks, broker/dealers, credit unions,
securities exchanges and some other institutions. A notary public is not
acceptable. The Fund requires a signature guarantee for redemption requests from
IRA accounts, redemption requests made payable to a person or an address not on
record with the Fund, or to change or add telephone redemption privileges.
The Fund's transfer agent reserves the right to reject any signature guarantee.
WHEN REDEMPTION PROCEEDS ARE SENT TO YOU
Your shares will be redeemed at the NAV next determined after the Fund's
transfer agent accepts your redemption request. Your redemption request cannot
be processed on days the NYSE is closed.
When making a redemption request, make sure your request is in good order. "Good
order" means your letter of instruction includes:
|X| the NAME of the Fund
|X| the DOLLAR AMOUNT or the NUMBER of shares to be redeemed
|X| SIGNATURES of all registered shareholders exactly as the shares are
registered
|X| the ACCOUNT number
All requests accepted by the Fund's transfer agent before the close of the
regular trading session of the NYSE (usually 4:00 p.m. Eastern time) will
normally be wired to the bank you indicate or mailed on the following day to the
address of record. Except in extreme circumstances, proceeds will be wired or a
check mailed within 7 calendar days after the Fund receives your redemption
request.
If you purchase shares using a check and soon after request a redemption, the
Fund will honor the redemption request, but will not mail or wire the proceeds
until your purchase check has cleared (usually within 12 days).
ADDITIONAL POLICIES
TELEPHONE TRANSACTIONS
Once you place a telephone transaction request, it cannot be canceled or
modified. The Fund uses reasonable procedures to confirm that telephone requests
are genuine. The Fund may be responsible if it does not follow these procedures.
You are responsible for losses resulting from fraudulent or unauthorized
instructions received over the telephone, provided the Fund reasonably believes
the instructions were genuine. Contact the Fund immediately if you believe there
is a discrepancy between a transaction you performed and the confirmation
statement you received, or if you believe someone has obtained unauthorized
access to your account.
During times of unusual market activity, the Fund's phones may be busy and you
may experience a delay in placing a telephone request. If you are unable to
contact the Fund's transfer agent by phone, shares may also be purchased or
redeemed by delivering the redemption request to the Fund's transfer agent.
INVESTING THROUGH A THIRD PARTY
If you invest through a third party (rather than with the Fund), the policies
and fees may be different than described in this prospectus. Banks, brokers,
401(k) plans, financial advisers, and financial supermarkets may charge
transaction fees and may set different minimum investments or limitations on
buying or selling shares. Consult a representative of your plan or financial
institution if you are not sure.
DISTRIBUTIONS AND TAXES
In general, the Fund will distribute substantially all of its net investment
income and any net capital gains that it has realized in the sale of securities.
These income and gains distributions will generally be paid once each year, on
or before December 31. Distributions will automatically be reinvested in
additional shares of the Fund, unless you elect to have the distributions paid
to you in cash. If you choose to have distribution checks mailed to you and
either the U.S. Postal Service is unable to deliver the check to you or the
check remains outstanding for at least 6 months, the Fund reserves the right to
reinvest the check at the then current NAV until you notify the Fund with
different instructions.
In general, Fund distributions are taxable to you as either ordinary income or
capital gains. Any distributions you receive from the Fund's net income and
gains (other than the Fund's net capital gains), will be taxable to you as
ordinary dividend income at your marginal income tax rate, and to certain
corporate investors, who may be eligible for the dividends received deduction.
Any distributions you receive from the Fund's net capital gains generally will
be taxable to you at your long-term capital gains rate. This is generally true
no matter how long you have owned your shares and whether you reinvest your
distributions or take them in cash. If the Fund distributes realized gains soon
after you purchase shares, a portion of your investment may be treated as a
taxable distribution.
You may also have to pay taxes when you sell or redeem your shares if the value
of your shares has increased above their cost basis since you bought them. Any
loss recognized on the sale of a share held for less than six months is treated
as long-term capital loss to the extent of any net capital gain distributions
made with respect to such share.
Fund distributions and gains from the sale of your shares may be subject to
state and local income tax. Non-U.S. investors may be subject to U.S.
withholding and estate tax. You should consult your tax adviser about the
federal, state, local or foreign tax consequences of your investment in the
Fund.
SHAREHOLDER REPORTS AND CONFIRMATIONS
As a shareholder, you will be provided annual and semi-annual reports showing
the Fund's portfolio investments and financial information. You will also
receive confirmations of your purchases into, and redemptions out of, the Fund.
Account statements will be mailed to you on an annual basis.
RESERVED RIGHTS
The Fund reserves the right to:
o Refuse, change, discontinue, or temporarily suspend account
services, including purchase, exchange, or telephone redemption
privileges, for any reason.
o Reject any purchase request for any reason. Generally, the Fund
does this if the purchase or exchange is disruptive to the
efficient management of the Fund (due to the timing of the
investment or an investor's history of excessive trading).
o Change the minimum or maximum investment amounts.
o Delay sending out redemption proceeds for up to seven days (this
generally only applies to very large redemptions without notice,
excessive trading, or during unusual market conditions).
o Suspend redemptions or postpone payments when the NYSE is closed
for any reason other than its usual weekend or holiday closings,
when trading is restricted by the SEC, or under any emergency
circumstances.
o Make a redemption in-kind (a payment in portfolio securities
rather than cash) if the amount you are redeeming is in excess of
the lesser of (i) $250,000 or (ii) 1% of the Fund's assets.
Generally, a redemption in-kind is used when large redemption
requests may cause harm to the Fund and its shareholders.
o Close any account that does not meet minimum investment
requirements. The Fund will give you notice and 60 days to begin
an automatic investment program or to increase your balance to the
required minimum. The initial minimum investment may be waived at
the Fund's discretion.
o Reject any purchase or redemption request that does not contain all required
documentation.
INVESTMENT ADVISER
Cullen Capital Management LLC
NEW YORK, NEW YORK
DISTRIBUTOR
Quasar Distributors, LLC
MILWAUKEE, WISCONSIN
INDEPENDENT AUDITORS
PricewaterhouseCoopers LLP
MILWAUKEE, WISCONSIN
LEGAL COUNSEL
Sidley & Ausitn
CHICAGO, ILLINOIS
ADMINISTRATOR, TRANSFER AGENT,
AND FUND ACCOUNTANT
Firstar Mutual Fund Services, LLC
MILWAUKEE, WISCONSIN
CUSTODIAN
Firstar Bank, N.A.
CINCINNATI, OHIO
FOR MORE INFORMATION
You can find more information about the Fund in the following documents:
STATEMENT OF ADDITIONAL INFORMATION (SAI)
The SAI contains details about investments and techniques of the Fund and
certain other additional information. A current SAI is on file with the SEC and
is incorporated into this prospectus by reference. This means that the SAI is
legally considered a part of this prospectus even though it is not physically
contained within this prospectus.
ANNUAL AND SEMI-ANNUAL REPORTS
After the Fund has been operating for the appropriate time, annual and
semi-annual reports will be made available. The Fund's annual and semi-annual
reports provide the most recent financial reports and portfolio listings. The
annual report contains a discussion of the market conditions and investment
climate that affected the Fund's performance during the Fund's last fiscal year.
You can obtain a free copy of these documents or request other information about
the Fund by calling the Fund at 1-800-_______ or by writing to:
CULLEN VALUE FUND
C/O FIRSTAR MUTUAL FUND SERVICES, LLC
P.O. BOX 701
MILWAUKEE, WI 53201-0701
You may write to the SEC Public Reference Room at the regular mailing address or
the e-mail address below and ask them to mail you information about the Fund,
including the SAI. They will charge you a fee for this duplicating service. You
can also visit the SEC Public Reference Room and copy documents while you are
there. For more information about the operation of the Public Reference Room,
call the SEC at the telephone number below.
PUBLIC REFERENCE SECTION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0102
[email protected]
1-202-942-8090
Reports and other information about the Fund are also available on the EDGAR
Database on the SEC's Internet site at HTTP://WWW.SEC.GOV.
1940 Act File No. 811-________
CULLEN VALUE FUND
A series of Cullen Funds Trust
STATEMENT OF ADDITIONAL INFORMATION
______, 2000
This Statement of Additional Information (the "SAI") is not a prospectus. You
may obtain a copy of the prospectus dated ______, 2000 (the "Prospectus") of
Cullen Value Fund (the "Fund"), a series of the Cullen Funds Trust (the
"Trust"), without charge by calling the Fund at 1-800-________ or by writing the
Fund at the address set forth below. This SAI contains information in addition
to and more detailed than that set forth in the Prospectus. You should read this
SAI together with the Prospectus and retain it for future reference.
REGULAR MAIL OVERNIGHT OR EXPRESS MAIL
Cullen Value Fund Cullen Value Fund
c/o Firstar Mutual Fund Services, LLC c/o Firstar Mutual Fund Services, LLC
P.O. Box 701 615 East Michigan Street, 3rd Floor
Milwaukee, WI 53201-0701 Milwaukee, WI 53202
TABLE OF CONTENTS
Page
The Trust......................................................................3
Description of the Fund and its Investment Objective, Policies and Risks.......3
Investment Restrictions........................................................7
Management of the Fund.........................................................8
Control Persons and Principal Holders of Shares...............................10
Investment Advisory and Other Services........................................10
Distributor...................................................................12
Distribution and Shareholder Servicing Plan...................................12
Brokerage.....................................................................13
Capital Structure.............................................................14
Determination of Net Asset Value..............................................14
Purchase and Redemption of Shares.............................................15
Additional Information on Distributions and Taxes.............................16
Calculation of Performance Data...............................................18
Shareholder Reports...........................................................20
Service Providers.............................................................20
Financial Statements..........................................................21
Additional Information........................................................21
THE TRUST
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The Trust is an open-end management investment company created as a Delaware
business trust on March 25, 2000 and registered under the Investment Company Act
of 1940, as amended (the "Investment Company Act"). The Trust currently offers
one series of shares to investors, the Cullen Value Fund. An investor, by
investing in the Fund, becomes entitled to a pro rata share of all dividends and
distributions arising from the net income and capital gains on the investments
of the Fund. Likewise, an investor shares pro rata in any losses of the Fund.
DESCRIPTION OF THE FUND AND ITS INVESTMENT OBJECTIVE, POLICIES AND RISKS
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For additional information on the Fund, its investment objective, policies and
risks, see also "What Are The Fund's Goals?", "What Are The Fund's Principal
Investment Strategies?" and "Additional Information On Investment Policies And
Risks" in the Fund's Prospectus and "Investment Restrictions" below.
INVESTMENT OBJECTIVE
The primary investment objective of the Fund is long-term capital appreciation,
and portfolio securities are selected primarily with a view to achieve this
objective. The Fund's primary objective is a fundamental policy of the Fund and
may not be changed without shareholder approval as described below in
"Investment Restrictions." Current income is a secondary objective in the
selection of investments. This secondary objective is not a fundamental policy
of the Fund and may be changed by a vote of a majority of the Board of Trustees
without a vote of the shareholders.
DIVERSIFICATION
It is anticipated that the Fund will diversify its investments among various
issuers in different industries. The Fund may, however, from time to time,
invest up to 25% of the value of its total assets in securities of issuers all
of which conduct their principal business activities in the same industry.
PORTFOLIO TURNOVER
The Fund expects to purchase and sell securities at such times as it deems to be
in the best interest of its shareholders. The Fund anticipates that its annual
portfolio turnover rate should not significantly exceed 50%. The Fund, however,
has not placed any limit on its rate of portfolio turnover, and securities may
be sold without regard to the time they have been held when, in the opinion of
the Fund's investment adviser, investment considerations warrant such action.
CONVERTIBLE SECURITIES
Convertible securities are bonds, debentures, notes, preferred stocks, or other
securities that may be converted into or exchanged for a specified amount of
common stock of the same or a different issuer within a particular period of
time at a specified price or formula. A convertible security entitles the holder
to receive interest normally paid or accrued on debt or the dividend paid on
preferred stock until the convertible security matures or is redeemed, converted
or exchanged. Convertible securities have unique investment characteristics in
that they generally (1) have higher yields than common stocks, but lower yields
than comparable non-convertible securities, (2) are less subject to fluctuation
in value than the underlying stock since they have fixed income characteristics,
and (3) provide the potential for capital appreciation if the market price of
the underlying common stock increases.
The value of a convertible security is a function of its "investment value"
(determined by its yield in comparison with the yields of other securities of
comparable maturity and quality that do not have a conversion privilege) and its
"conversion value" (the security's worth, at market value, if converted into the
underlying common stock). The investment value of a convertible security is
influenced by changes in interest rates, with investment value declining as
interest rates increase and increasing as interest rates decline. The credit
standing of the issuer and other factors also may have an effect on the
convertible security's investment value. The conversion value of a convertible
security is determined by the market price of the underlying common stock. If
the conversion value is low relative to the investment value, the price of the
convertible security is governed principally by its investment value. Generally,
the conversion value decreases as the convertible security approaches maturity.
To the extent the market price of the underlying common stock approaches or
exceeds the conversion price, the price of the convertible security will be
increasingly influenced by its conversion value.
FOREIGN SECURITIES AND CURRENCIES
Foreign investments involve special risks, including:
- - - expropriation, confiscatory taxation, and withholding taxes on dividends and
interest;
- - - less extensive regulation of foreign brokers, securities markets, and
issuers;
- - - less publicly available information and different accounting standards;
- - - costs incurred in conversions between currencies, possible delays in
settlement in foreign securities markets, limitations on the use or transfer of
assets (including suspension of the ability to transfer currency from a given
country), and difficulty of enforcing obligations in other countries; and
- - - diplomatic developments and political or social instability.
Foreign economies may differ favorably or unfavorably from the U.S. economy in
various respects, including growth of gross domestic product, rates of
inflation, currency depreciation, capital reinvestment, resource
self-sufficiency and balance-of-payments positions. Many foreign securities may
be less liquid and their prices more volatile than comparable U.S. securities.
From time to time foreign securities may be difficult to liquidate rapidly
without adverse price efforts. Certain costs attributable to foreign investing
such as custody charges and brokerage costs, may be higher than those
attributable to domestic investing.
The risks of foreign investments are generally intensified for investments in
developing countries. Risks of investing in such markets include:
- - - less social, political and economic stability;
- - - small securities markets and lower trading volume, which may result in a
lack of liquidity and greater price volatility;
- - - certain national policies that may restrict the Fund's investment
opportunities, including restrictions on investments in issuers or industries
deemed sensitive to national interests, or expropriation or confiscation of
assets or property, which could result in the Fund's loss of its entire
investment in that market; and
- - - less developed legal structures governing private or foreign investment or
allowing for judicial redress for injury to private property.
In addition, brokerage commissions, custodial services, withholding taxes, and
other costs relating to investments in emerging markets generally are more
expensive than in the U.S. and certain more established foreign markets.
Economics in emerging markets generally are heavily dependent upon international
trade and, accordingly, have been and may continue to be affected adversely by
trade barriers, exchange controls, managed adjustments in relative currency
values, and other protectionist measures negotiated or imposed by the countries
with which they trade.
Because most foreign securities are denominated in non-U.S. currencies, the
investment performance of the Fund could be affected by changes in foreign
currency exchange rates to some extent. The value of the Fund's assets
denominated in foreign currencies will increase or decrease in response to
fluctuations in the value of those foreign currencies relative to the U.S.
dollar. Currency exchange rates can be volatile at times in response to supply
and demand in the currency exchange markets, international balances of payments,
governmental intervention, speculation, and other political and economic
conditions.
MEDIUM-CAPITALIZATION COMPANIES
The Fund may invest in medium-capitalization companies. While
medium-capitalization companies often have the potential for growth, investments
in medium-capitalization companies often involve greater risks than investments
in large, more established companies. Medium-capitalization companies may lack
the management experience, financial resources, product diversification, and
competitive strengths of large companies. In addition, in certain instances the
securities of medium-capitalization companies are traded only over-the-counter
("OTC") or on a regional securities exchange, and the frequency and volume of
their trading may be substantially less than is typical of larger companies.
(The OTC market is the security exchange system in which broker/dealers
negotiate directly with one another rather than through the facilities of a
securities exchange). Therefore, the securities of medium-capitalization
companies may be subject to greater and more abrupt price fluctuations. When
making large sales, the Fund may have to sell portfolio holdings at discounts
from quoted prices or may have to make a series of small sales over an extended
period of time due to the trading volume of medium-capitalization company
securities. Investors should be aware that, based on the foregoing factors, an
investment in the Fund may be subject to greater price fluctuations than an
investment in a mutual fund that invests primarily in the largest, most
established companies. The investment adviser's research efforts may also play a
greater role in selecting securities for the Fund than in a mutual fund that
invests exclusively in larger, more established companies.
WARRANTS
The Fund may acquire warrants. Warrants are securities giving the holder the
right, but not the obligation, to buy the stock of an issuer at a given price
(generally higher than the value of the stock at the time of issuance) during a
specified period or perpetually. Warrants may be acquired separately or in
connection with the acquisition of securities. Warrants do not carry with them
the right to dividends or voting rights with respect to the securities that they
entitle their holder to purchase, and they do not represent any rights in the
assets of the issuer. As a result, warrants may be considered to have more
speculative characteristics than certain other types of investments. In
addition, the value of a warrant does not necessarily change with the value of
the underlying securities, and a warrant ceases to have value if it is not
exercised prior to its expiration date.
CASH INVESTMENTS
Cash or cash equivalents in which the Fund may invest when its investment
adviser is unable to identify attractive equity investments include short-term
money market securities such as U.S. Treasury bills, prime-rated commercial
paper, certificates of deposit, variable rate demand notes, or repurchase
agreements. Variable rate demand notes are non-negotiable instruments. The
instruments the Fund invests in are generally rated at least Al by Standard &
Poor's Corporation. However, the Fund may be susceptible to credit risk with
respect to these notes to the extent the issuer defaults on its payment
obligation.
REPURCHASE AGREEMENTS
The Fund may enter into repurchase agreements with banks or non-bank dealers. In
a repurchase agreement, the Fund buys a security at one price, and at the time
of sale, the seller agrees to repurchase the obligation at a mutually agreed
upon time and price (within seven days). The repurchase agreement thereby
determines the yield during the purchaser's holding period, while the seller's
obligation to repurchase is secured by the value of the underlying security. In
the event of a bankruptcy or other default of the seller, the Fund could
experience both delays in liquidating the underlying securities and losses,
including: (a) possible decline in the value of the underlying security during
the period while the Fund seeks to enforce its rights; (b) possible subnormal
levels of income or proceeds and lack of access to income and proceeds during
this period; and (c) expenses of enforcing its rights.
INVESTMENT RESTRICTIONS
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FUNDAMENTAL RESTRICTIONS
The policies set forth below are fundamental policies of the Fund and may not be
changed without approval of the holders of the lesser of: (i) 67% of the Fund's
shares present or represented at a shareholders meeting at which the holders of
more than 50% of such shares are present or represented, or (ii) more than 50%
of outstanding shares of the Fund. The Fund may not:
1. Purchase securities on margin, participate in a joint-trading
account (the bunching of securities transaction orders with orders of other
accounts managed by the adviser not being considered participation in a
joint-trading account for this purpose), sell securities short, act as an
underwriter or distributor of securities other than shares of the Fund, lend
money (except by purchasing publicly distributed debt securities or entering
into repurchase agreements) or purchase or sell commodities, commodities futures
or real estate (marketable securities of companies whose business involves the
purchase or sale of real estate not being considered real estate for this
purpose).
2. Borrow money or issue senior securities except for temporary bank
borrowings (not in excess of 5% of the value of its total assets) for emergency
or extraordinary purposes, or pledge, mortgage or hypothecate any of its assets
to secure such borrowings to an extent greater than 10% of the value of the
Fund's net assets.
3. Make investments for the purpose of exercising control or
management of any company.
4. Purchase securities of any issuer (other than the United States or
an instrumentality of the United States) if, as a result of such purchase, the
Fund would hold more than 10% of the voting securities of any class of such
issuer or more than 5% of the Fund's total assets would be invested in
securities of such issuer.
5. Concentrate more than 25% of the value of its total assets,
exclusive of U.S. government securities, in securities issued by companies
primarily engaged in the same industry.
6. Enter into repurchase agreements with maturities of more than seven
days or invest in securities for which there is no readily available market if,
as a result thereof, such repurchase agreements and securities would constitute
more than 10% of the value of the net assets of the Fund.
7. Invest in put or call options.
NON-FUNDAMENTAL RESTRICTIONS
Additional investment restrictions adopted by the Fund, which may be changed by
the Board of Trustees without a vote of the shareholders, provide that the Fund
may not:
1. Invest in the securities of a foreign issuer or depository receipts
for such securities, if at the time of acquisition more than 30% of the value of
the Fund's assets would be invested in such securities. (The Fund is permitted
to invest up to 30% of its assets in securities of foreign issuers or depository
receipts therefor which are traded in a U.S. market or available through a U.S.
broker or dealer, regardless of whether such securities or depository receipts
are traded in U.S. dollars).
2. Purchase securities of other investment companies, except on the
open market where no commission or profit results other than the broker's
commission, or as part of a plan of merger, consolidation or reorganization
approved by the shareholders of the Fund.
3. Acquire or retain any security issued by a company, an officer or
director of which is an officer or trustee of the Trust or an officer, director,
member or other affiliated person of its investment adviser.
4. Purchase any securities which are restricted from sale to the public
without registration under the Securities Act of 1933.
5. Loan portfolio securities except where collateral values are
continuously maintained at no less than 100% by "marking to market" daily and
the practice is fair, just and equitable.
MANAGEMENT OF THE FUND
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The Board of Trustees of the Trust consists of ___ individuals, ___ of whom are
not "interested persons" of the Trust as defined in the Investment Company Act
("Non-Interested Trustees"). The Board of Trustees is responsible for managing
the Trust's business and affairs. The Board of Trustees has appointed the
Trust's officers, who conduct the daily business of the Trust.
Set forth below is information about the trustees and officers of the Trust.
Trustees deemed to be "interested persons" of the Trust for purposes of the
Investment Company Act are indicated by an asterisk (*).
<TABLE>
<CAPTION>
NAME, ADDRESS AND AGE POSITION(S) HELD WITH FUND PRINCIPAL OCCUPATION(S) DURING
PAST 5 YEARS
<S> <C> <C>
James P. Cullen* Trustee and President President, controlling Member and
Cullen Capital Management LLC Portfolio Manager, Cullen Capital
645 Fifth Avenue Management LLC, since _________
New York, NY 10022 2000; President, Schafer Cullen
DOB: 1938 Capital Management, Inc., a
registered investment adviser,
from December 1982 to present.
John C. Gould Vice President Vice President and Assistant
Cullen Capital Management LLC Portfolio Manager, Cullen Capital
645 Fifth Avenue Management LLC, since _____ 2000;
New York, NY 10022 Assistant Portfolio Manager,
DOB: 1960 Schafer Cullen Capital
Management, Inc., from 1989 to
present.
Brooks H. Cullen Vice President Vice President and Analyst,
Cullen Capital Management LLC Cullen Capital Management LLC,
645 Fifth Avenue since _____ 2000; Analyst,
New York, NY 10022 Schafer Cullen Capital
DOB: 1967 Management, Inc., from 1996 to
present.
Andrew Kaneb Vice President Vice President, Research Director
Cullen Capital Management LLC and Analyst, Cullen Capital
645 Fifth Avenue Management LLC, since _____ 2000;
New York, NY 10022 Analyst, Schafer Cullen Capital
DOB: 1968 Management, Inc., from 1999 to
present; Director of Strategic
Planning, Sega Gaming Technology,
from 1997 to 1999; Analyst, Deutsche
Morgan Grenfell, from 1995 to 1997.
Richard H. Stahmer Secretary and Treasurer Secretary and Treasurer, Cullen
Cullen Capital Management LLC Capital Management LLC, since
645 Fifth Avenue _____ 2000; Trader, Schafer
New York, NY 10022 Cullen Capital Management, Inc.,
DOB: 1973 1998 to present; Trader, Gabelli
Asset Management, from 1995 to
1998.
</TABLE>
James P. Cullen and Brooks H. Cullen are father and son.
Each Non-Interested Trustee of the Trust is paid a trustee's fee of $_____ per
year plus $_____ for each meeting attended and is reimbursed for the expenses of
attendance at such meetings. Neither the Trust nor the Fund pays any fees to the
trustees who are considered "interested persons" of the Trust or the Fund or the
Fund's investment adviser, as defined in the Investment Company Act. Neither the
Trust nor the Fund maintains any deferred compensation, pension or retirement
plans, and no pension or retirement benefits are accrued as part of Trust or
Fund expenses.
CONTROL PERSONS AND PRINCIPAL HOLDERS OF SHARES
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As of ___, 2000, which was prior to the public offering of the Fund's shares,
James P. Cullen was the holder of 100% of the Fund's shares, and there were
otherwise no control persons or principal holders of securities of the Fund.
Control persons are persons deemed to control the Fund because they own
beneficially over 25% of the outstanding equity securities. Principal holders
are persons that own beneficially 5% or more of the Fund's outstanding equity
securities.
INVESTMENT ADVISORY AND OTHER SERVICES
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ADVISORY AGREEMENT
On ______, the Board of Trustees (including at least a majority of the
Non-Interested Trustees) and the shareholders of the Fund approved an investment
advisory agreement (the "Advisory Agreement") pursuant to which Cullen Capital
Management LLC, 645 Fifth Avenue, New York, NY 10022 (the "Adviser"), furnishes
continuous investment advisory services and management to the Fund. The Adviser
is an investment advisory firm formed in Delaware. For more information about
the Adviser, see "Who Are the Fund's Investment Adviser and Portfolio Manager?"
in the Prospectus.
Mr. Cullen, President of the Trust, is also the controlling member of the
Adviser. John C. Gould, Brooks H. Cullen and Andrew Kaneb, Vice Presidents of
the Trust, are also Vice Presidents of the Adviser, respectively. Richard H.
Stahmer, Secretary and Treasurer of the Trust, is also Secretary and Treasurer
of the Adviser.
Under the Advisory Agreement and subject to the general supervision of the
Trust's Board of Trustees, the Adviser is responsible for making and
implementing investment decisions for the Fund. In addition, the Adviser
furnishes office space, office facilities, equipment, personnel (other than the
services of trustees of the Trust who are not interested persons of the
Adviser), and clerical and bookkeeping services for the Fund to the extent not
provided by the Fund's custodian, transfer agent and dividend paying agent, and
accounting services agent. The Trust or the Fund pays all other expenses of the
Fund's operation, including, without limitation, interest, taxes and any
governmental filing fees; brokerage commissions and other costs incurred in
connection with the purchase or sale of securities; compensation and expenses of
its Non-Interested Trustees; legal and audit expenses; the fees and expenses of
the Fund's custodian, transfer agent and dividend paying agent, and accounting
services agent; expenses relating to the redemption of shares; expenses of
servicing shareholder accounts; fees and expenses related to the registration
and qualification of the Fund and its shares under federal and state securities
laws; expenses of printing and mailing reports, notices and proxy material to
shareholders; insurance premiums for fidelity and other insurance coverage;
expenses of preparing prospectuses and statements of additional information and
of printing and distributing them to existing shareholders; and any nonrecurring
expenses, including actions, suits or proceedings to which the Trust or the Fund
is a party and any obligation which the Trust or the Fund may incur to indemnify
others.
The Advisory Agreement provides that the Adviser shall have no liability to the
Trust, the Fund or the Trust's shareholders in the absence of willful
misfeasance, bad faith, gross negligence, or reckless disregard of its
obligations under the Agreement.
The Advisory Agreement is not assignable and may be terminated by either party,
without penalty, on 60 days' notice. The Advisory Agreement will continue in
effect until ________, 2002 (unless sooner terminated) and thereafter for
successive one-year periods so long as it is approved annually (a) by the vote
of a majority of the Non-Interested Trustees, cast in person at a meeting called
for the purpose of voting on such approval, and (b) either by the Board of
Trustees of the Trust or by the vote of the shareholders as described under
"Investment Restrictions."
As described in the Prospectus, the Adviser has contractually agreed to limit
the total expenses of the Fund (excluding interest, taxes, brokerage and
extraordinary expenses) to an annual rate of 2.00% through ______, 2001.
Pursuant to this agreement, the Fund has agreed that through the period ending
_________, 2003, the Fund will reimburse the Adviser for any fee waivers or
expense reimbursements made pursuant to this agreement, since the inception of
the Fund, provided that any such waivers or reimbursements made by the Fund will
not cause the Fund's expense limitations to exceed the amounts set forth above.
Under this agreement, the Adviser may be reimbursed for fee waivers or expense
reimbursements that accrued from the inception of the Fund.
CODE OF ETHICS
The Trust and the Adviser have adopted the same written Code of Ethics. This
Code of Ethics governs the personal securities transactions of trustees,
managers, members, officers and employees who may have access to current trading
information of the Fund. The Code permits such persons to invest in securities
for their personal accounts, including securities that may be purchased or held
by the Fund. The Code includes reporting and other obligations to monitor
personal transactions and ensure that such transactions are consistent with the
best interests of the Fund.
FUND ADMINISTRATION
Firstar Mutual Fund Services, LLC, a subsidiary of Firstar Bank, N.A., provides
administrative personnel and services (including blue-sky services) to the Trust
and the Fund. Administrative services include, but are not limited to, providing
equipment, telephone facilities, various personnel, including clerical and
supervisory, and computers as is necessary or beneficial to provide compliance
services to the Fund and the Trust. Firstar Mutual Fund Services, LLC also
serves as fund accountant and transfer agent under separate agreements.
FINANCIAL INTERMEDIARIES
From time to time, the Fund may pay, directly or indirectly, amounts to
financial intermediaries that provide transfer-agent type and/or other
administrative services relating to the Fund to their customers or other persons
who beneficially own interests in the Fund, such as participants in 401(k)
plans. These services may include, among other things, sub-accounting services,
transfer agent-type services, answering inquiries relating to the Fund,
transmitting, on behalf of the Fund, proxy statements, annual reports, updated
prospectuses, other communications regarding the Fund, and related services as
the Fund or the intermediaries' customers or such other persons may reasonably
request. In such cases, to the extent paid by the Fund, the Fund will not pay
more for these services through intermediary relationships than it would if the
intermediaries' customers were direct shareholders in the Fund.
DISTRIBUTOR
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Quasar Distributors, LLC serves as the principal underwriter and national
distributor for the shares of the Fund pursuant to a Distribution Agreement with
the Trust dated as of _________, 2000 (the "Distribution Agreement"). Quasar
Distributors, LLC is registered as a broker-dealer under the Securities Exchange
Act of 1934 and each state's securities laws and is a member of the NASD. The
offering of the Fund's shares is continuous. The Distribution Agreement provides
that the Distributor, as agent in connection with the distribution of Fund
shares, will use its best efforts to distribute the Fund's shares.
DISTRIBUTION AND SHAREHOLDER SERVICING PLAN
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The Fund has adopted a Distribution and Shareholder Servicing Plan (the "Plan")
pursuant to Rule 12b-1 under the Investment Company Act. The Plan authorizes
payments by the Fund in connection with the distribution of shares at an annual
rate of 0.25% of the Fund's average daily net asset value. Payments may be made
by the Fund under the Plan for the purpose of financing any activity primarily
intended to result in the sale of shares of the Fund, as determined by the Board
of Trustees. Such activities typically include advertising; compensation for
sales and sales marketing activities of financial service agents and others,
such as dealers or distributors; shareholder account servicing; production and
dissemination of prospectuses and sales and marketing materials; and capital or
other expenses of associated equipment, rent, salaries, bonuses, interest and
other overhead. To the extent any activity is one which the Fund may finance
without the Plan, the Fund may also make payments to finance such activity
outside of the Plan and not subject to its limitations. Payments under the Plan
are not tied exclusively to actual distribution and service expenses, and the
payments may exceed distribution and service expenses actually incurred.
Administration of the Plan is regulated by Rule 12b-1 under the Investment
Company Act, which includes requirements that the Board of Trustees receive and
review at least quarterly reports concerning the nature and qualification of
expenses which are made, that the Board of Trustees, including a majority of the
Non-Interested Trustees, approve all agreements implementing the Plan and that
the Plan may be continued from year-to-year only if the Board of Trustees,
including a majority of the Non-Interested Trustees, concludes at least annually
that continuation of the Plan is likely to benefit shareholders.
BROKERAGE
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The Adviser is responsible for selecting brokers and dealers to effect purchases
or sales of securities for the account of the Fund. In selecting such brokers,
it is the policy of the Adviser to seek the best execution of orders at the most
favorable price in light of the overall quality of brokerage and research
services provided, as described in this and the following paragraph. In
selecting brokers to effect portfolio transactions, the determination of what is
expected to result in best execution at the most favorable price involves a
number of largely judgmental considerations. Among these are the Adviser's
evaluation of the broker's efficiency in executing and clearing transactions,
block trading capability (including the broker's willingness to position
securities), the broker's familiarity with the security and the broker's
financial strength and stability. The most favorable price to the Fund means the
best net price without regard to the mix between purchase or sale price and
commission, if any.
In allocating the Fund's brokerage, the Adviser will also take into
consideration the research, analytical, statistical and other information and
services provided by the broker, such as general economic reports and
information, reports or analyses of particular companies or industry groups and
technical information and the availability of the brokerage firm's analysts for
consultation. While the Adviser believes these services have substantial value,
they are considered supplemental to the Adviser's own efforts in the performance
of its duties under the Advisory Agreement. As permitted by the Advisory
Agreement and in accordance with Section 28(e) of the Securities Exchange Act of
1934, as amended, the Adviser may pay brokers higher brokerage commissions than
might be available from other brokers if the Adviser determines in good faith
that such amount paid is reasonable in relation to the value of the overall
quality of the brokerage, research and other services provided. Other clients of
the Adviser may indirectly benefit from the availability of these services to
the Adviser, and the Fund may indirectly benefit from services available to the
Adviser as a result of transactions for the other clients.
The Adviser expects to enter into arrangements with broker-dealers whereby the
Adviser obtains computerized stock quotation and news services, performance and
ranking services, portfolio analysis services and other research services in
exchange for the direction of portfolio transactions which generate dealer
concessions or brokerage (agency) commissions for such broker-dealers. From time
to time, the Adviser may make other similar arrangements with brokers or dealers
which agree to provide research services in consideration of dealer concessions
or brokerage commissions. Consistent with the Adviser's fiduciary duties to the
Fund, brokerage will be directed to such brokers or dealers pursuant to any such
arrangement only when the Adviser believes that the commissions charged are
reasonable in relation to the value and overall quality of the brokerage and
research services provided.
CAPITAL STRUCTURE
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The Trust is a Delaware business trust, formed on March 25, 2000. It is
authorized to issue an unlimited number of shares of beneficial interest. The
trustees of the Trust may, at any time and from time to time, by resolution,
authorize the division of shares into an unlimited number of series and the
division of any series into two or more classes. By this offering, one class of
shares of the Fund are being offered. Shares of the Fund are offered subject to
a charge imposed pursuant to Rule 12b-1 under the Investment Company Act.
Shareholders of the Trust are entitled to one vote for each full share and to a
proportionate fractional vote for each fractional share standing in the
shareholder's name on the books of the Trust. Each share has equal dividend,
distribution and liquidation rights. Shares do not have preemptive or
subscription rights. All shares are fully paid and non-assessable.
DETERMINATION OF NET ASSET VALUE
- --------------------------------------------------------------------------------
Shares of the Fund are sold on a continual basis at the net asset value ("NAV")
per share next computed following acceptance of an order by the Fund's transfer
agent. The Fund's NAV per share for the purpose of pricing purchase and
redemption orders is determined at the close of normal trading (usually 4:00
p.m. Eastern time) on each day the New York Stock Exchange ("NYSE") is open for
trading. The NYSE is closed on the following holidays: New Year's Day, Martin
Luther King, Jr. Day, President's Day, Good Friday, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day.
Securities listed on a U.S. securities exchange or Nasdaq for which market
quotations are readily available are valued at the last quoted sale price on the
day the valuation is made. Price information on listed securities is taken from
the exchange where the security is primarily traded. Any securities or other
assets for which market quotations are not readily available are valued at fair
value as determined in good faith by the Adviser under supervision of the Fund's
Board of Trustees.
Debt securities are valued by a pricing service that utilizes electronic date
processing techniques to determine values for normal institutional-sized trading
units of debt securities without regard to sale or bid prices when such
techniques are believed to more accurately reflect the fair market value for
such securities. Otherwise, sale or bid prices are used. Debt securities having
remaining maturities of 60 days or less when purchased are valued by the
amortized cost method. Under this method of valuation, a security is initially
valued at its acquisition cost, and thereafter, amortization of any discount or
premium is assumed each day, regardless of the impact of the fluctuating rates
on the market value of the instrument.
Securities quoted in foreign currency, if any, are valued daily in U.S. dollars
at the foreign currency exchange rates that are prevailing at the time the daily
NAV per share is determined. Although the Fund values its foreign assets in U.S.
dollars on a daily basis, it does not intend to convert its holdings of foreign
currencies into U.S. dollars on a daily basis. Foreign currency exchange rates
are generally determined prior to the close of trading on the NYSE.
Occasionally, events affecting the value of foreign investments and such
exchange rates occur between the time at which they are determined and the close
of trading on the NYSE. Such events would not normally be reflected in a
calculation of the Fund's NAV on that day. If events that materially affect the
sale of the Fund's foreign investments or the foreign currency exchange rates
occur during such period, the investments may be valued at their fair value as
determined in good faith by the Adviser under the supervision of the Board of
Trustees of the Fund.
PURCHASE AND REDEMPTION OF SHARES
- --------------------------------------------------------------------------------
PURCHASING SHARES
Shares of the Fund are sold in a continuous offering and may be purchased on any
business day through authorized investment dealers or directly from the Fund.
STOCK CERTIFICATES AND CONFIRMATIONS. The Fund does not generally issue stock
certificates representing shares purchased. Confirmations of the opening of an
account and of all subsequent transactions in the account are forwarded by the
Fund to the shareholder's address of record.
REDEEMING SHARES
SIGNATURE GUARANTEES. A signature guarantee of each shareholder on an account is
required to redeem shares if a shareholder requests (i) a redemption from an IRA
account; (ii) redemption proceeds be sent to an address other than that on
record with the Fund; or (iii) proceeds be made payable to someone other than
the shareholder(s) of record.
Signature guarantees are designed to protect both the shareholder and the Fund
from fraud. Signature guarantees can be obtained from most banks, credit unions
or savings associations, or from broker/dealers, municipal securities
broker/dealers, government securities broker/dealers, national securities
exchanges, registered securities exchanges, or clearing agencies deemed eligible
by the SEC. The Fund does NOT accept signatures guaranteed by a notary public.
ADDITIONAL DOCUMENTATION. Additional documents are required for certain types of
shareholders, such as corporations, partnerships, executors, trustees,
administrators, or guardians. The Fund's transfer agent requires documents from
entities to identify individuals possessing authority to redeem shares from the
Fund. The documentation may include corporate resolutions, partnership
agreements, trust instruments or plans that give such authority to the
individual.
REDEMPTION IN-KIND. The Fund has elected to be governed by Rule l8f-1 under the
Investment Company Act, which obligates the Fund to redeem shares in cash, with
respect to any one shareholder during any 90-day period, up to the lesser of
$250,000 or 1% of the assets of the Fund. If the Adviser determines that
existing conditions make cash payments undesirable, redemption payments may be
made in whole or in part in securities or other financial assets, valued for
this purpose as they are valued in computing the NAV for the Fund's shares (a
"redemption in-kind"). Shareholders receiving securities or other financial
assets in a redemption in-kind may realize a gain or loss for tax purposes, and
will incur any costs of sale, as well as the associated inconveniences. If you
expect to make a redemption in excess of the lesser of $250,000 or 1% of the
Fund's assets during any 90-day period and would like to avoid any possibility
of being paid with securities in-kind, you may do so by providing the Fund with
an unconditional instruction to redeem at least 15 calendar days prior to the
date on which the redemption transaction is to occur, specifying the dollar
amount or number of shares to be redeemed and the date of the transaction
(please call 1-800-__________). This will provide the Fund with sufficient time
to raise the cash in an orderly manner to pay the redemption and thereby
minimize the effect of the redemption on the interests of the Fund's remaining
shareholders.
ADDITIONAL INFORMATION ON DISTRIBUTIONS AND TAXES
- --------------------------------------------------------------------------------
DISTRIBUTIONS
A shareholder will automatically receive all income dividends and capital gain
distributions in additional full and fractional shares of the Fund at their net
asset value as of the date of payment unless the shareholder elects to receive
such dividends or distributions in cash. Shareholders will receive a
confirmation of each new transaction in their account. The Fund will confirm all
account activity, including the payment of dividend and capital gain
distributions and transactions made as a result of a Systematic Withdrawal Plan
or an Automatic Investment Plan. Shareholders may rely on these statements in
lieu of stock certificates.
TAXES
DISTRIBUTIONS OF NET INVESTMENT INCOME. The Fund receives income generally in
the form of dividends on its investments. This income, less expenses incurred in
the operation of the Fund, constitutes the Fund's net investment income from
which dividends may be paid to you. Any distributions by the Fund from such
income will be taxable to you as ordinary income, whether you take them in cash
or in additional shares.
DISTRIBUTIONS OF CAPITAL GAINS. The Fund may derive capital gains and losses in
connection with sales or other dispositions of its portfolio securities.
Distributions from net short-term capital gains will be taxable to you as
ordinary income. Distributions from net long-term capital gains will be taxable
to you as long-term capital gain, regardless of how long you have held your
shares in the Fund. Any net capital gains realized by the Fund generally will be
distributed once each year, and may be distributed more frequently, if
necessary, in order to reduce or eliminate excise or income taxes on the Fund.
INFORMATION ON THE TAX CHARACTER OF DISTRIBUTIONS. The Fund will inform you of
the amount of your ordinary income dividends and capital gains distributions at
the time they are paid, and will advise you of their tax status for federal
income tax purposes shortly after the close of each calendar year. If you have
not held Fund shares for a full year, the Fund may designate and distribute to
you, as ordinary income or capital gain, a percentage of income that is not
equal to the actual amount of such income earned during the period of your
investment in the Fund.
ELECTION TO BE TAXED AS A REGULATED INVESTMENT COMPANY. The Fund intends to
elect to be treated as a regulated investment company under Subchapter M of the
Internal Revenue Code and intends to so qualify during the current fiscal year.
As a regulated investment company, the Fund generally pays no federal income tax
on the income and gains it distributes to you. The Board reserves the right not
to maintain the qualification of the Fund as a regulated investment company if
it determines such course of action to be beneficial to shareholders. In such
case, the Fund will be subject to federal, and possibly state corporate taxes on
its taxable income and gains, and distributions to you will be taxed as ordinary
dividend income to the extent of the Fund's earnings and profits.
EXCISE TAX DISTRIBUTION REQUIREMENTS. To avoid federal excise taxes, the
Internal Revenue Code requires the Fund to distribute to you by December 31 of
each year, at a minimum, the following amounts: 98% of its taxable ordinary
income earned during the calendar year; 98% of its capital gain net income
earned during the twelve month period ending October 31; and 100% of any
undistributed amounts from the prior year. The Fund intends to declare and pay
these amounts in December (or in January that are treated by you as received in
December) to avoid these excise taxes, but can give no assurances that its
distributions will be sufficient to eliminate all taxes.
REDEMPTION OF FUND SHARES. Redemptions and exchanges of Fund shares are taxable
transactions for federal and state income tax purposes. If you redeem your Fund
shares, the IRS will require that you report a gain or loss on your redemption
or exchange. If you hold your shares as a capital asset, the gain or loss that
you realize will be capital gain or loss and will be long-term or short-term,
generally depending on how long you hold your shares. Any loss incurred on the
redemption or exchange of shares held for six months or less will be treated as
a long-term capital loss to the extent of any long-term capital gains
distributed to you by the Fund on those shares.
All or a portion of any loss that you realize upon the redemption of your Fund
shares will be disallowed to the extent that you buy other shares in the Fund
(through reinvestment of dividends or otherwise) within 30 days before or after
your share redemption. Any loss disallowed under these rules will be added to
your tax basis in the new shares you buy.
DIVIDENDS-RECEIVED DEDUCTION FOR CORPORATIONS. If you are a corporate
shareholder, you should note that it is expected that a portion of the dividends
paid by the Fund will qualify for the dividends-received deduction. In some
circumstances, you will be allowed to deduct these qualified dividends, thereby
reducing the tax that you would otherwise be required to pay on these dividends.
The dividends-received deduction will be available only with respect to
dividends designated by the Fund as eligible for such treatment. All dividends
(including the deducted portion) must be included in your alternative minimum
taxable income calculation.
INVESTMENT IN COMPLEX SECURITIES. The Fund may invest in complex securities.
These investments may be subject to numerous special and complex tax rules.
These rules could affect whether gains and losses recognized by the Fund are
treated as ordinary income or capital gain, accelerate the recognition of income
to the Fund and/or defer the Fund's ability to recognize losses. In turn, these
rules may affect the amount, timing or character of the income distributed to
you by the Fund.
The tax consequences to a foreign shareholder of investing in the Fund may be
different from those described herein. Foreign shareholders are advised to
consult their own tax advisers with respect to the particular tax consequences
to them of an investment in the Fund.
The foregoing is only a general summary of certain provisions of the Internal
Revenue Code and current Treasury regulations applicable to the Fund and its
shareholders. The Internal Revenue Code and such regulations are subject to
change by legislative or administrative action. Investors are urged to consult
their own tax advisers regarding the application of federal, state and local tax
laws.
CALCULATION OF PERFORMANCE DATA
- --------------------------------------------------------------------------------
The Fund may advertise "average annual total return," "total return," and
"cumulative total return". Each of these figures is based upon historical
results and does not represent the future performance of the Fund. Average
annual total return and total return figures measure both the net investment
income generated by, and the effect of any realized and unrealized appreciation
or depreciation of, the underlying investments in the Fund assuming the
reinvestment of all dividends and distributions. Total return figures are not
annualized and simply represent the aggregate change of the Fund's investments
over a specified period of time.
The annual total return of the Fund will vary over time, and will be computed in
accordance with the rules for standardized computation of performance as
established by the Securities and Exchange Commission. Such rules for
standardized computation of performance provide for determining percentage
changes, carried out to two decimal places, based on changes in net asset value
as described in the preceding paragraph.
The Fund's performance will vary from time to time and your shares, when
redeemed, may be worth more or less than their original cost. You should not
consider past results as representative of future performance. Factors affecting
the Fund's performance include, among other things, general market conditions,
the composition of the Fund's portfolio, and operating expenses. In reporting
performance, the Fund makes no adjustment for taxes payable by shareholders on
reinvested income dividends and capital gains distributions.
The Fund may also advertise comparative performance information obtained from
industry or financial publications. The Fund may compare its performance to that
of other mutual funds with similar investment objectives and to stock or other
relevant indices. From time to time, articles about the Fund regarding its
performance or ranking may appear in national publications. Some of these
publications may publish their own rankings or performance reviews of mutual
funds, including the Fund. Reference to or reprints of such articles may be used
in the Fund's promotional literature.
COMPARISONS
LIPPER ANALYTICAL SERVICES, INC. ("LIPPER") AND OTHER INDEPENDENT RANKING
ORGANIZATIONS. From time to time, in marketing and other fund literature, the
Fund's performance may be compared to the performance of other mutual funds in
general or to the performance of particular types of mutual funds with similar
investment goals, as tracked by independent organizations. Among these
organizations, Lipper, a widely used independent research firm which ranks
mutual funds by overall performance, investment objectives, and assets, may be
cited. Lipper performance figures are based on changes in net asset value, with
all income and capital gains dividends reinvested. Such calculations do not
include the effect of any sales charges imposed by other funds. The Fund will be
compared to Lipper's appropriate fund category, that is, by fund objective and
portfolio holdings. The Fund's performance may also be compared to the average
performance of its Lipper category.
MORNINGSTAR, INC. The Fund's performance may also be compared to the performance
of other mutual funds by Morningstar, Inc., which rates funds on the basis of
historical risk and total return. Morningstar's ratings range from five stars
(highest) to one star (lowest) and represent Morningstar's assessment of the
historical risk level and total return of a fund as a weighted average for 3, 5,
and 10 year periods. Ratings are not absolute and do not represent future
results.
INDEPENDENT SOURCES. Evaluations of fund performance made by independent sources
may also be used in advertisements concerning the Fund, including reprints of,
or selections from, editorials or articles about the Fund, especially those with
similar objectives. Sources for fund performance and articles about the Fund may
include publications such as Money, Forbes, Kiplinger's, Smart Money, Financial
World, Business Week, U.S. News and World Report, The Wall Street Journal,
Barron's and a variety of investment newsletters.
INDICES. The Fund may compare its performance to a wide variety of indices.
There are differences and similarities between the investments that a Fund may
purchase and the investments measured by the indices.
HISTORICAL ASSET CLASS RETURNS. From time to time, marketing materials may
portray the historical returns of various asset classes. Such presentations will
typically compare the average annual rates of return of inflation, U.S. Treasury
bills, bonds, common stocks, and small stocks. There are important differences
between each of these investments that should be considered in viewing any such
comparison. The market value of stocks will fluctuate with market conditions,
and small-stock prices generally will fluctuate more than large-stock prices.
Stocks are generally more volatile than bonds. In return for this volatility,
stocks have generally performed better than bonds or cash over time. Bond prices
generally will fluctuate inversely with interest rates and other market
conditions, and the prices of bonds with longer maturities generally will
fluctuate more than those of shorter-maturity bonds. Interest rates for bonds
may be fixed at the time of issuance, and payment of principal and interest may
be guaranteed by the issuer and, in the case of U.S. Treasury obligations,
backed by the full faith and credit of the U.S. Treasury.
SHAREHOLDER REPORTS
- --------------------------------------------------------------------------------
An annual report will be issued to shareholders after the close of each fiscal
year, which ends June 30. This report will include financial statements for the
Fund audited by the Fund's independent accountants, PricewaterhouseCoopers LLP.
A semi-annual report will also be issued to the Fund's shareholders.
SERVICE PROVIDERS
- --------------------------------------------------------------------------------
CUSTODIAN
Firstar Bank, N.A., 425 Walnut Street, Cincinnati, Ohio 45202, acts as custodian
of the cash and securities of the Fund. The custodian holds all cash and,
directly or through a book entry system or an agent, securities of the Fund,
delivers and receives payment for securities sold by the Fund, collects income
from investments of the Fund and performs other duties, all as directed by
officers of the Fund. The custodian does not exercise any supervisory function
over the management of, or the purchase and sale of securities by, the Fund.
TRANSFER AGENT, DIVIDEND DISBURSING AGENT AND FUND ACCOUNTANT
Firstar Mutual Fund Services, LLC acts as the Fund's transfer agent,
dividend-paying agent, fund accountant and shareholder servicing agent. Firstar
Mutual Fund Services, LLC's address is 615 East Michigan Street, Milwaukee,
Wisconsin 53202.
DISTRIBUTOR
Quasar Distributors, LLC, 615 East Michigan Street, Milwaukee, Wisconsin 53202,
serves as principal underwriter for the Fund and as such, is the agent for the
distribution of shares of the Fund.
COUNSEL
Sidley & Austin, Bank One Plaza, 10 South Dearborn Street, Chicago, Illinois
60603, is counsel for the Fund.
INDEPENDENT ACCOUNTANTS
PricewaterhouseCoopers LLP has been selected as the independent accountants of
the Fund. As such, they are responsible for auditing the financial statements of
the Fund.
FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
Financial statements are not available for the Fund because the Fund commenced
operations on _________, 2000.
ADDITIONAL INFORMATION
- --------------------------------------------------------------------------------
The Fund's Prospectus and this Statement of Additional Information omit certain
information contained in the Registration Statement which the Fund has filed
electronically with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, and reference is hereby made to the
Registration Statement for further information with respect to the Fund and the
securities offered hereby. This Registration Statement is available for
inspection by the public at the public reference facilities maintained by the
Commission in Washington, D.C.
CULLEN FUNDS TRUST
PART C
OTHER INFORMATION
ITEM 23. EXHIBITS.
(a) DECLARATION OF TRUST
(i) Certificate of Trust-- Filed herewith.
(ii) Agreement and Declaration of Trust-- Filed herewith.
(b) BYLAWS - Filed herewith.
(c) INSTRUMENTS DEFINING RIGHTS OF SECURITY HOLDERS-- Incorporated by
reference to the Agreement and Declaration of Trust and Bylaws.
(d) ADVISORY AGREEMENT--Form of Advisory Agreement filed herewith.
(e) UNDERWRITING AGREEMENT-- To be filed by amendment.
(f) BONUS OR PROFIT SHARING CONTRACTS - Not applicable.
(g) CUSTODY AGREEMENT-- To be filed by amendment.
(h) OTHER MATERIAL CONTRACTS
(i) Administration Agreement-- To be filed by amendment.
(ii) Transfer Agent Servicing Agreement-- To be filed by amendment.
(iii) Fund Accounting Servicing Agreement-- To be filed by amendment.
(i) OPINION AND CONSENT OF COUNSEL-- To be filed by amendment.
(j) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS-- To be filed by amendment.
(k) OMITTED FINANCIAL STATEMENTS - Not applicable.
(l) AGREEMENT RELATING TO INITIAL CAPITAL-- To be filed by amendment.
(m) RULE 12B-1 PLAN - To be filed by amendment.
(n) RULE 18F-3 PLAN - Not applicable.
(o) RESERVED.
(p) CODE OF ETHICS - Form of the Code of Ethics for the Adviser and Trust
filed herewith.
ITEM 24. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT.
No person is directly or indirectly controlled by or under common
control with the Registrant.
ITEM 25. INDEMNIFICATION.
Reference is made to Article VII of the Registrant's Agreement and
Declaration of Trust.
Pursuant to Rule 484 under the Securities Act of 1933, as amended, the
Registrant furnishes the following undertaking: "Insofar as indemnification for
liability arising under the Securities Act of 1933 (the "Act") may be permitted
to trustees, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that, in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a trustee,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such trustee, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue."
ITEM 26. BUSINESS AND OTHER CONNECTIONS OF THE INVESTMENT ADVISER.
Cullen Capital Management LLC will serve as the investment adviser for
the Registrant. The business and other connections of Cullen Capital Management
LLC will be set forth in the Uniform Application for Investment Adviser
Registration ("Form ADV") of Cullen Capital Management LLC as will shortly be
filed with the SEC and which will be incorporated by reference herein.
ITEM 27. PRINCIPAL UNDERWRITER.
(a) Quasar Distributors, LLC, 615 East Michigan Street, Milwaukee,
Wisconsin, 53202, the Distributor for shares of the Registrant,
will also act as principal underwriter for other open-end
investment companies not yet under registration as of the date of
filing.
(b) To the best of Registrant's knowledge, the directors and executive
officers of Quasar Distributors, LLC are as follows:
<TABLE>
<CAPTION>
NAME AND PRINCIPAL POSITION AND OFFICES WITH QUASAR POSITIONS AND OFFICES WITH
BUSINESS ADDRESS DISTRIBUTORS, LLC REGISTRANT
- --------------------------------------------- ---------------------------------------- ------------------------------
<S> <C> <C>
James R. Schoenike President, Board Member None
- --------------------------------------------- ---------------------------------------- ------------------------------
Donna J. Berth Treasurer None
- --------------------------------------------- ---------------------------------------- ------------------------------
James J. Barresi Secretary None
- --------------------------------------------- ---------------------------------------- ------------------------------
Joe Redwine Board Member None
- --------------------------------------------- ---------------------------------------- ------------------------------
Bob Kern Board Member None
- --------------------------------------------- ---------------------------------------- ------------------------------
Paul Rock Board Member None
- --------------------------------------------- ---------------------------------------- ------------------------------
Jennie Carlson Board Member None
- --------------------------------------------- ---------------------------------------- ------------------------------
</TABLE>
The address of each of the foregoing is 615 East Michigan Street, Milwaukee,
Wisconsin, 53202.
ITEM 28. LOCATION OF ACCOUNTS AND RECORDS.
The books and records required to be maintained by Section 31(a) of
the Investment Company Act of 1940 are maintained in the following locations:
RECORDS RELATING TO: ARE LOCATED AT:
- ------------------- ---------------
Registrant's Fund Accounting, Firstar Mutual Fund Services, LLC
Administrator and Transfer Agent 615 East Michigan Street
Milwaukee, WI 53202
Registrant's Investment Adviser Cullen Capital Management LLC
645 Fifth Avenue
New York, NY 10022
Registrant's Custodian Firstar Bank, N.A.
425 Walnut Street
Cincinnati, OH 54202
ITEM 29. MANAGEMENT SERVICES NOT DISCUSSED IN PARTS A AND B.
Not applicable.
ITEM 30. UNDERTAKINGS.
The Registrant hereby undertakes to furnish each person to whom a
Prospectus for one or more of the series of the Registrant is delivered with a
copy of the relevant latest annual report to shareholders, upon request and
without charge.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant certifies that it has duly caused
this Registration Statement to be signed below on its behalf by the undersigned,
duly authorized, in the City of New York and the State of New York on the 27th
day of March, 2000.
CULLEN FUNDS TRUST
BY: /S/ JAMES P. CULLEN
-----------------------
James P. Cullen
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on March 27, 2000 by the following
persons in the capacities indicated.
SIGNATURE TITLE
/S/ JAMES P. CULLEN Trustee
- ---------------------------
James P. Cullen
CERTIFICATE OF TRUST
OF
CULLEN FUNDS TRUST
A Delaware Business Trust
This Certificate of Trust of Cullen Funds Trust (the "Trust"), dated as
of this 25th day of March, 2000 is being duly executed and filed, in order to
form a business trust pursuant to the Delaware Business Trust Act (the "Act"),
Del. Code Ann.tit. 12, Sections 3801-3819.
1. NAME. The name of the business trust formed hereby is "Cullen Funds Trust."
2. REGISTERED OFFICE AND REGISTERED AGENT. The Trust will become, prior to the
issuance of shares of beneficial interest, a registered investment company under
the Investment Company Act of 1940, as amended. Therefore, in accordance with
section 3807(b) of the Act, the Trust has and shall maintain in the State of
Delaware a registered office and a registered agent for service of process.
(A) REGISTERED OFFICE. The registered office of the Trust in Delaware is
The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801.
(B) REGISTERED AGENT. The registered agent for service of process on the
Trust in Delaware is The Corporation Trust Company, 1209 Orange Street,
Wilmington, Delaware 19801.
3. LIMITATION OF LIABILITY. Pursuant to section 3804(a) of the Act, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular series of the Trust, established pursuant
to the terms of the Agreement and Declaration of Trust, shall be enforceable
against the assets of such series only and not against the assets of the Trust
generally.
IN WITNESS WHEREOF, the Trustee named below does hereby execute this
Certificate of Trust as of the date first-above written.
/S/ JAMES P. CULLEN
-------------------
James P. Cullen
AGREEMENT AND DECLARATION OF TRUST
OF
CULLEN FUNDS TRUST
a Delaware Business Trust
Principal Place of Business:
645 Fifth Avenue
New York, NY 10022
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I...........................................................................................................3
NAME AND DEFINITIONS.............................................................................................3
Section 1. NAME............................................................................................3
----
Section 2. DEFINITIONS.....................................................................................3
-----------
ARTICLE II..........................................................................................................6
PURPOSE AND NATURE OF TRUST......................................................................................6
Section 1. PURPOSE OF TRUST................................................................................6
----------------
Section 2. NATURE OF TRUST.................................................................................6
---------------
ARTICLE III.........................................................................................................7
SHARES AND SHAREHOLDERS..........................................................................................7
Section 1. DIVISION OF BENEFICIAL INTEREST.................................................................7
-------------------------------
Section 2. ASSETS AND LIABILITIES ASSOCIATED WITH SERIES AND CLASSES.......................................7
---------------------------------------------------------
Section 3. ISSUANCE OF AND INVESTMENTS IN SHARES...........................................................9
-------------------------------------
Section 4. NONASSESSABILITY OF SHARES.....................................................................10
--------------------------
Section 5. NO PERSONAL LIABILITY; INDEMNIFICATION FOR PERSONAL LIABILITY..................................10
-------------------------------------------------------------
Section 6. EQUALITY.......................................................................................11
--------
Section 7. DIVIDENDS AND OTHER DISTRIBUTIONS..............................................................11
---------------------------------
Section 8. VOTING RIGHTS..................................................................................11
-------------
Section 9. TRANSFERABILITY................................................................................12
---------------
Section 10. NO PREEMPTIVE RIGHTS...........................................................................12
--------------------
Section 11. ACTIONS BY SHAREHOLDERS........................................................................12
-----------------------
Section 12. EXCHANGE PRIVILEGES AND CONVERSION FEATURES....................................................13
-------------------------------------------
Section 13. NO APPRAISAL RIGHTS............................................................................13
-------------------
Section 14. OTHER ATTRIBUTES OF SHARES AND SHARE OWNERSHIP.................................................13
----------------------------------------------
Section 15. FRACTIONAL SHARES..............................................................................14
-----------------
Section 16. TREASURY SHARES................................................................................14
---------------
Section 17. OWNERSHIP AND TRANSFER OF SHARES...............................................................14
--------------------------------
Section 18. COMBINATION OF SHARES..........................................................................15
---------------------
Section 19. RIGHTS OF SHAREHOLDERS TO INSPECT RECORDS......................................................15
-----------------------------------------
Section 20. PURCHASE OF SHARES BY TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS OF TRUST........................16
-----------------------------------------------------------------------
ARTICLE IV.........................................................................................................16
DETERMINATION OF NET ASSET VALUE, DIVIDENDS AND DISTRIBUTIONS, AND REDEMPTIONS..................................16
Section 1. DETERMINATION OF NET ASSET VALUE...............................................................16
--------------------------------
Section 2. DIVIDENDS AND OTHER DISTRIBUTIONS..............................................................17
---------------------------------
Section 3. REDEMPTIONS AT THE OPTION OF THE SHAREHOLDER...................................................18
--------------------------------------------
Section 4. REDEMPTIONS AT THE OPTION OF THE TRUST.........................................................19
--------------------------------------
Section 5. DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS IN-KIND..............................................19
-------------------------------------------------
ARTICLE V..........................................................................................................20
SHAREHOLDERS' VOTING POWERS AND MEETINGS........................................................................20
Section 1. VOTING POWERS..................................................................................20
-------------
Section 2. MEETINGS.......................................................................................21
--------
Section 3. QUORUM AND REQUIRED VOTE.......................................................................22
------------------------
Section 4. ACTION BY WRITTEN CONSENT......................................................................22
-------------------------
Section 5. RECORD DATES...................................................................................22
------------
Section 6. ADDITIONAL PROVISIONS..........................................................................23
---------------------
ARTICLE VI.........................................................................................................23
THE TRUSTEES....................................................................................................23
Section 1. NUMBER AND QUALIFICATIONS......................................................................23
-------------------------
Section 2. INITIAL TRUSTEE................................................................................23
---------------
Section 3. ELECTION OF TRUSTEES...........................................................................23
--------------------
Section 4. TERM OF OFFICE.................................................................................24
--------------
Section 5. VACANCIES AND APPOINTMENTS.....................................................................24
--------------------------
Section 6. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE................................................25
-----------------------------------------------
Section 7. ACTION BY THE TRUSTEES.........................................................................25
----------------------
Section 8. CHAIRMAN OF THE TRUSTEES.......................................................................25
------------------------
Section 9. PRINCIPAL TRANSACTIONS.........................................................................26
----------------------
Section 10. POWERS.........................................................................................26
------
Section 11. PAYMENT OF EXPENSES BY THE TRUST...............................................................30
--------------------------------
Section 12. OWNERSHIP OF ASSETS OF THE TRUST...............................................................31
--------------------------------
Section 13. SERVICE CONTRACTS..............................................................................31
-----------------
ARTICLE VII........................................................................................................33
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION OF TRUSTEES AND OFFICERS..............................33
Section 1. COMPENSATION...................................................................................33
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Section 2. LIMITATION OF LIABILITY........................................................................33
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Section 3. INDEMNIFICATION................................................................................34
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Section 4. INSURANCE......................................................................................36
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ARTICLE VIII.......................................................................................................36
AMENDMENT.......................................................................................................36
ARTICLE IX.........................................................................................................37
DISSOLUTION OF TRUST OR TERMINATION OF SERIES OR CLASSES; REORGANIZATION........................................37
Section 1. DISSOLUTION OF TRUST OR TERMINATION OF SERIES OR CLASSES.......................................37
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Section 2. REORGANIZATION.................................................................................38
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ARTICLE X..........................................................................................................39
MISCELLANEOUS...................................................................................................39
Section 1. FILING OF COPIES; REFERENCES; HEADINGS; SINGULAR AND PLURAL; COUNTERPARTS......................39
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Section 2. APPLICABLE LAW; CONSTRUCTION...................................................................40
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Section 3. RECORD DATES FOR OTHER PURPOSES................................................................41
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Section 4. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.................................................41
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</TABLE>
AGREEMENT AND DECLARATION OF TRUST
OF
CULLEN FUNDS TRUST
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of
the date set forth below by the Initial Trustee for the purpose of creating a
Delaware business trust in accordance with the Act and the provisions
hereinafter set forth;
NOW, THEREFORE, the Initial Trustee hereby directs that a Certificate of Trust
be filed with the Office of the Secretary of State of the State of Delaware and
declare that this Trust shall hold IN TRUST all securities and other property
which it now possesses or may hereafter acquire from time to time in any manner
and that the Trustees shall manage and dispose of the same for the benefit of
the holders of Shares in this Trust upon the following terms and conditions.
ARTICLE I.
NAME AND DEFINITIONS
Section 1. NAME
The name of the trust created hereby (this "Trust") shall be "Cullen
Funds Trust", and the Trustees shall conduct, operate and carry on the business
and affairs of this Trust under that name or any other name or names as they
from time to time may deem appropriate.
Section 2. DEFINITIONS
Whenever used herein, the following terms shall have the following
meanings, unless otherwise required by the context or otherwise expressly
provided herein:
(a) "Act" means Title 12, Chapter 38, Sections 3801 et.
seq. of the Delaware Code, entitled "Treatment of Delaware Business
Trusts," and also referred to as the "Delaware Business Trust Act," as
amended from time to time.
(b) "By-Laws" means the by-laws of the Trust as adopted by the
Trustees under and in accordance with ARTICLE VI, Section 10(b) hereof
and as amended or restated from time to time, which are incorporated
herein by reference.
(c) "Class" means each class of Shares within a Series, which
Class (i) has been authorized by the Trustees under and in accordance
with the provisions of ARTICLE III hereof and (ii) is a class subject
to Rule 18f-3 under the 1940 Act.
(d) "Covered Person" has the meaning given it in ARTICLE
VII, Section 3 hereof.
(e) "Commission" has the meaning given it in Section
2(a)(7) of the 1940 Act.
(f) "Declaration of Trust" means this Agreement and
Declaration of Trust, as amended or restated from time to time.
References in this Declaration of Trust to "hereby," "herein,"
"hereof," "hereto" and "hereunder" shall be deemed to refer to this
Declaration of Trust rather than the article or Section of this
Declaration of Trust in which such words appear.
(g) "Disinterested Trustee" has the meaning given it in
ARTICLE VII, Section 3 hereof.
(h) "Distribution Record Date" has the meaning given it
in ARTICLE IV, Section 2 hereof.
(i) "Initial Trustee" has the meaning given it in ARTICLE
VI, Section 2 hereof.
(j) "Interested Person" has the meaning given it in
Section 2(a)(19) of the 1940 Act.
(k) "Investment Manager" or "Manager" means a party furnishing
services to the Trust or any Series or to another Investment Manager or
Manager pursuant to any contract described in ARTICLE VI, Section 13
hereof.
(l) "Meeting Record Date" has the meaning given it in
ARTICLE V, Section 5 hereof.
(m) "Net Asset Value," when used with respect to a Share of a
particular Series or Class, means the amount determined by dividing the
Net Asset Value of that Series or Class by the number of Shares of that
Series or Class outstanding as of the time of determination of such Net
Asset Value per Share; and "Net Asset Value", when used with respect to
a particular Series or Class, means the net asset value of that Series
or Class determined under and in accordance with ARTICLE IV, Section 1
hereof.
(n) "1940 Act" means 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.
(o) "Person" means and includes (i) natural persons; (ii)
corporations, general partnerships, limited partnerships, joint
ventures, limited liability companies, joint stock associations or
companies, trusts, funds, other entities or any organized group of
Persons, whether incorporated or not; and (iii) governments and
agencies and political subdivisions thereof, whether domestic or
foreign.
(p) "Principal Underwriter" has the meaning given it in
Section 2(a)(29) of the 1940 Act.
(q) "Resolution", as of any time, means a written consent or
consents signed, or a resolution approved at a duly constituted meeting
of the Trustees, by a majority of the Trustees in office at such time.
(r) "Series" means each series of Shares that is (i)
authorized by the Trustees under and in accordance with the provisions
of ARTICLE III hereof and (ii) a series, as described in Section
18(f)(2) of the 1940 Act, subject to Rule 18f-2 thereunder.
(s) "Service Provider" means any Person who, as agent,
independent contractor or consultant, provides services of any nature,
including, without limitation, services of the type customarily
provided to investment companies registered as such under the 1940 Act
by investment managers or advisers, administrators, custodians,
depositories, transfer or similar agents, dividend disbursement agents,
shareholder servicing agents, accountants and accounting agents,
counsel, Principal Underwriters and distributors.
(t) "Shareholder," as of any time, means a holder of record as
of such time of outstanding Shares. References herein to a Shareholder
or to Shareholders shall refer to such Shareholder or Shareholders
solely in his or her or their capacity or capacities as such hereunder.
(u) "Shares" mean the shares of beneficial interest into which
the beneficial interest in the Trust shall be divided from time to time
under and in accordance with the terms hereof, and includes fractional
Shares as well as whole Shares; and "outstanding Shares" or "Shares
then outstanding," as of any time, mean those Shares shown as of such
time on the books of the Trust (or of the applicable transfer or
similar agent for such Shares) as then issued and outstanding.
(v) "State" means any state, territory or possession of
the United States and includes the District of Columbia and Puerto
Rico.
(w) "Trust" means this Delaware business trust created by this
Declaration of Trust, as amended from time to time.
(x) "Trustees" mean the Initial Trustee, so long as he shall
continue in office in accordance with the terms hereof, and all other
natural persons who at the time in question have been duly elected or
appointed to serve as Trustees in accordance with the terms hereof, who
have signed this Declaration of Trust and who are then in office in
accordance with the terms hereof, and references herein to a Trustee or
to the Trustees shall refer to such person or persons solely in his or
her or their capacity or capacities as Trustee or Trustees hereunder.
(y) "Trust Property," as of any time, means any and all
property, real or personal, tangible or intangible, which as of such
time is owned or held by or for the account of any one or more of the
Trust and the Series, including, without limitation, the limited rights
referenced in ARTICLE X, Section 5 hereof.
(z) "vote of a majority of the outstanding Shares of a Series"
means the vote, at a meeting of the holders of Shares of such Series
duly called, (i) of sixty-seven percent (67%) or more of the Shares of
such Series present at such meeting, if holders of more than fifty
percent (50%) of the outstanding Shares of such Series are present or
represented by proxy or (ii) of more than fifty percent (50%) of the
outstanding Shares of such Series, whichever is less.
ARTICLE II.
PURPOSE AND NATURE OF TRUST
Section 1. PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business and affairs of an open-end management investment company registered
under the 1940 Act, through one or more investment portfolios, each investing in
securities and other property and represented by a Series.
Section 2. NATURE OF TRUST
It is the intention of the Trustees to create, and this Trust is and
shall continue to be, a business trust within the meaning of Section 3801(A) of
the Act. Accordingly, it is the intention of the Trustees to create only the
relationship of trustee and beneficial owners within the meaning of the Act
between the Trustees and Shareholders. It is not the intention of the Trustees
to create, and the Trust shall not be deemed to be or be treated as, a
corporation, general partnership, limited partnership, joint venture, joint
stock association or company, bailment, or any form of legal organization other
than a business trust within the meaning of Section 3801(A) of the Act.
Accordingly, nothing in this Declaration of Trust shall be construed to make the
Trustees or Shareholders, or any combination of them, shareholders of a
corporation, partners, joint venturers or members of a joint stock association
or company, for any purpose, nor shall the Trustees or Shareholders, or any
combination of them, for any purpose be deemed to be, or be treated in any way
whatsoever as though they were, liable or responsible hereunder as partners or
joint venturers.
ARTICLE III.
SHARES AND SHAREHOLDERS
Section 1. DIVISION OF BENEFICIAL INTEREST
The beneficial interest in the Trust shall at all times be divided into
an unlimited number of Shares having no par value; provided, however, that
subject to the requirements of the 1940 Act, the remainder of this ARTICLE III
and ARTICLES IV and V hereof, the Trustees, at any time and from time to time,
by Resolution, may authorize the division of Shares into two or more Series and
the division of any existing or new Series into two or more Classes (with each
such Series and Class being constituted of an unlimited number of Shares or such
number of Shares as the Trustees may deem appropriate in connection with such
authorization). Any such authorization shall (a) establish and designate, and
fix and determine the relative rights, powers, privileges, preferences and
duties of, the Series or Class so authorized; (b) set forth, either expressly or
by reference to another document or documents, the investment objectives,
policies, restrictions and limitations of the Series so authorized; (c) be
effective as of the date specified therein; and (d) be incorporated herein by
reference.
The Trustees shall cause the Trust to maintain separate and distinct
records for each Series authorized by the Trustees under this Section 1.
Section 2. ASSETS AND LIABILITIES ASSOCIATED WITH SERIES AND
CLASSES
Shares of each particular Series and Class that have been authorized
under and in accordance with ARTICLE III, Section 1 hereof, unless otherwise
expressly provided in such authorization, shall have the following relative
rights, powers, privileges, preferences and duties:
(a) Assets Associated with a Particular Series.
All consideration received by the Trust for the issuance or
sale of Shares of a particular Series, together with all assets in which such
consideration is invested or reinvested, and all income, earnings, profits and
proceeds thereof, from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds, in
whatever form the same may be, shall be held in trust for the benefit of the
holders of Shares of such Series, and not for the benefit of holders of Shares
of any other Series, for all purposes, subject only to the liabilities
associated with such Series (or the applicable Class thereof) (as hereinafter
defined), and shall be accounted for and recorded upon the books of the Trust
separately from the assets associated with any other Series. Such consideration,
and such assets, income, earnings, profits and proceeds thereof, from whatever
source derived, including, without limitation, any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds, in whatever form the same may be, are
herein referred to as "assets associated with" that Series. In the event that
there are any assets, income, earnings, profits and proceeds thereof, and any
funds or payments, which are not readily associated with a 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 Asset so allocated to a particular Series shall thereupon be
deemed to be an asset associated with that Series. Each such allocation by the
Trustees shall be conclusive and binding upon the Shareholders of all Series for
all purposes.
Notwithstanding the foregoing, where a Series is divided into
two or more Classes under and in accordance with ARTICLE III, Section 1 hereof,
all income and realized and unrealized capital gains that are required under
Rule 18f-3 under the 1940 Act to be allocated to, between or among one or more
of such Classes in a particular manner shall be so allocated, and where the
Trustees have discretion under that Rule to allocate income and realized and
unrealized capital gains to, between or among one or more of such Classes, the
Trustees shall exercise such discretion (either in the authorization creating
such Classes or on an ongoing basis) in such manner and on such basis as they in
their sole discretion deem fair and equitable.
(b) Liabilities Associated with a Particular Series or
Class.
All liabilities, expenses, costs, charges and reserves of the
Trust which are readily associated with a particular Series shall be charged
against the assets associated with that Series, and any liabilities, expenses,
costs, charges and reserves of the Trust which are not readily associated with a
particular Series shall be allocated and charged by the Trustees 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; provided, however,
that where a Series is divided into two or more Classes under and in accordance
with ARTICLE III, Section 1 hereof, all expenses and realized and unrealized
capital losses that are required under Rule 18f-3 under the 1940 Act to be
allocated and charged to, between or among one or more of such Classes in a
particular manner shall be so allocated and charged, and where the Trustees have
discretion under that Rule to allocate and charge expenses and realized and
unrealized capital losses to, between or among one or more of such Classes, the
Trustees shall exercise such discretion (either in the authorization creating
such Classes or on an ongoing basis) in such manner and on such basis as they in
their sole discretion deem fair and equitable. The liabilities, expenses, costs,
charges and reserves so allocated and charged to a Series or Class are herein
referred to as "liabilities associated with" that Series or Class. Each
allocation of liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon the Shareholders of all Series and Classes
for all purposes.
Without limiting the generality of the foregoing, but subject
to the authority of the Trustees to allocate liabilities, expenses, costs,
charges and reserves which are not readily associated with a particular Series
as provided in the first sentence of this Section 2(b), the debts, liabilities,
obligations and expenses incurred by, contracted for or otherwise existing with
respect to a particular Series shall be enforceable against the assets
associated with that Series only, and not against the assets associated with any
other Series (or against the assets of the Trust generally). The Trustees may
cause notice of this limitation on interseries liabilities to be set forth in
the Certificate of Trust of the Trust (whether originally or by amendment) to be
filed in the Office of the Secretary of State of the State of Delaware pursuant
to the Act, and upon the giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 (or any successor Section) of the Act
relating to limitations on interseries liabilities (and the statutory effect
under Section 3804 (or any successor Section) of setting forth such notice in
the Certificate of Trust) shall become applicable to the Trust and each Series.
All Persons who extend credit to (or with respect to) a particular Series, or
who contract with (or with respect to) or have a claim against a particular
Series, may look only to the assets associated with that Series for repayment of
such credit or to enforce or satisfy any such contract or claim; and no
Shareholder or Trustee or officer, employee or Service Provider of the Trust,
whether past, present or future, shall be personally liable therefor solely by
reason of his or her capacity as such.
(c) Dividends, Distributions, Redemptions, and
Repurchases.
Notwithstanding any other provision of this Declaration of
Trust, including, without limitation, any provision of ARTICLE IV hereof or of
ARTICLE IX, Section 1 hereof, no dividend or distribution on or with respect to
Shares of a particular Series, including, without limitation, any distribution
paid in connection with the dissolution of the Trust or the termination of that
Series, nor any redemption or repurchase of Shares of that Series, shall be
effected by the Trust other than from the assets associated with that Series,
nor shall any Shareholder or former Shareholder of a particular Series otherwise
have any right or claim against the assets associated with any other Series
(except to the extent that such Shareholder or former Shareholder has such a
right or claim hereunder as a Shareholder or former Shareholder of such other
Series or in a capacity other than as a Shareholder or former Shareholder).
Section 3. ISSUANCE OF AND INVESTMENTS IN SHARES
The Trustees, at any time and from time to time, may cause the Trust to
issue whole and fractional Shares of any Series or Class that has been
authorized under and in accordance with ARTICLE III, Section 1 hereof (in
addition to the then outstanding Shares of such Series or Class and Shares held
as treasury shares in accordance with ARTICLE III, Section 16 hereof), to such
Person or Persons, on such terms (including, without limitation, terms
establishing minimum required purchases), and for such type and amount of
consideration as is permitted by Section 3802(A) of the Act (including cash and
securities or other property), or for no consideration, as the Trustees may deem
appropriate.
Each investment in Shares by the purchaser thereof shall be credited to
such purchaser's individual Shareholder account in the form of whole and
fractional Shares of the Trust, of such Series and Class thereof as may be
available to such purchaser and as such purchaser may select, at the Net Asset
Value per Share next determined (under and in accordance with ARTICLE IV,
Section 1 hereof) for such Series and Class after receipt and/or acceptance of
the investment by or on behalf of the Trust on the terms determined by the
Trustees; provided, however, that subject to the requirements of the 1940 Act,
the Trustees may cause the Trust to impose a sales charge upon investments in
the Trust in such manner and amount or amounts and at such time or times as the
Trustees may deem appropriate.
The Trustees shall not be required to cause the Trust to issue Shares
of a Series or Class that has been authorized under and in accordance with
ARTICLE III, Section 1 hereof, and may terminate the sale of Shares of a Series
or Class at any time or suspend such sales from time to time for such any
periods as they may deem appropriate.
Section 4. NONASSESSABILITY OF SHARES
All Shares (including, without limitation, Shares issued in connection
with a dividend paid in Shares or in connection with a split or reverse split of
Shares), when issued on the terms determined by the Trustees, shall be fully
paid and nonassessable, and neither the Trust nor any Trustee, nor any officer,
employee or agent of the Trust, shall have the power or authority 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 by
way of subscription for Shares or otherwise; provided, however, that the
foregoing shall not be deemed to prohibit the Trustees from taking any of the
actions described in the second paragraph of ARTICLE IV, Section 1 hereof.
Section 5. NO PERSONAL LIABILITY; INDEMNIFICATION FOR PERSONAL
LIABILITY
Neither the Trust nor any Trustee, nor any officer, employee or agent
of the Trust, shall have the power or authority to bind any Shareholder
personally, and no Shareholder or former Shareholder shall be personally liable
for the debts, liabilities, obligations or expenses incurred by, contracted for
or otherwise existing with respect to the Trust, any Series or any Class, but
shall be entitled to the same limitation of personal liability as is extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. The Trustees may cause any note, bond,
contract, instrument, certificate, Share or other undertaking issued, executed
or made by or on behalf of the Trust or any Series to include a recitation
limiting the obligation represented thereby to the Trust or to such Series and
the assets associated therewith, but the omission of such a recitation shall not
operate to bind any Shareholder personally.
If any Shareholder or former Shareholder of any Series shall be held to
be personally liable solely by reason of being or having been a Shareholder and
not because of his or her acts or omissions, the Shareholder or former
Shareholder (or his or her 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, out of the assets associated with
that Series, to be held harmless from and indemnified against all losses and
expenses arising from such liability; provided, however, that there shall be no
obligation of the Trust or of any Series arising under this Section 5 to
reimburse any Shareholder or former Shareholder for taxes paid by reason of such
Shareholder's or former Shareholder's holding of any Share.
Section 6. EQUALITY
Each Share of a particular Series or Class thereof shall represent an
equal undivided beneficial interest in the assets associated with that Series
(subject to the liabilities associated with that Series or Class, as the case
may be), and, subject to the relative rights, powers, privileges, preferences
and duties as among Classes within a Series (with each Share within a particular
Class being equal in every respect to each other Share within that Class), each
Share of a particular Series shall be equal in every respect to each other Share
of that Series. Accordingly, (a) subject to the relative rights, powers,
privileges, preferences and duties as among Classes within a Series, (i) no
Share of a particular Series shall have any priority or preference over any
other Share of that Series with respect to dividends or distributions including,
without limitation, distributions paid in connection with the dissolution of the
Trust or the termination of such Series, and (ii) all dividends and other
distributions shall be made ratably among all Shareholders of a particular
Series from the assets associated with that Series according to the number of
Shares of that Series held of record by such Shareholders as of the applicable
Distribution Record Dates for the payment of such dividends and distributions;
and (b) (i) no Share of a particular Class shall have any priority or preference
over any other Share of that Class with respect to dividends or distributions
including, without limitation, distributions paid in connection with the
dissolution of the Trust or the termination of such Class, and (ii) all
dividends and other distributions shall be made ratably among all Shareholders
of a particular Class from the assets associated with the Series of which such
Class is a part according to the number of Shares of that Class held of record
by such Shareholders as of the applicable Distribution Record Dates for the
payment of such dividends and distributions.
The foregoing shall not be deemed to prohibit the Trust from
distributing different types of Trust Property to different Shareholders of a
particular Series or Class (or to a particular Shareholder in respect of the
various Shares of a particular Series or Class held by him or her) in the case
of a dividend, distribution, or redemption in-kind, so long as the Trust shall
have complied with the principles set forth in the preceding paragraph and in
ARTICLE IV, Section 5 hereof.
Section 7. DIVIDENDS AND OTHER DISTRIBUTIONS
Holders of Shares of a particular Series (and Class thereof) shall be
entitled to receive dividends and other distributions, if, when and as declared
by the Trustees on or with respect thereto, to the extent provided in ARTICLE IV
hereof.
Section 8. VOTING RIGHTS
Shareholders shall have no voting rights except to the extent provided
in ARTICLE V hereof.
In any case herein where it is provided that the Trustees shall or may
take a particular action, do a particular thing or make a particular
determination, and the 1940 Act or such case does not expressly provide for
Shareholder authorization or approval of such action, thing or determination,
the Trustees shall have full power and authority to take such action, to do such
thing or to make such determination without obtaining any prior or subsequent
authorization or approval of the Shareholders of any Series or Class (and the
Trustees may take such action, do such thing or make such determination in their
sole discretion on such terms and in such manner as they may deem appropriate,
unless the context requires otherwise).
Without limiting the generality of the foregoing, the Trustees may
authorize Series and Classes of Shares under and in accordance with ARTICLE III,
Section 1 hereof without obtaining authorization or approval of the Shareholders
of any Series or Class.
Section 9. TRANSFERABILITY
Unless otherwise expressly provided by the Trustees in the
authorization establishing and designating a Series or Class of Shares, Shares
of that Series or Class shall be transferable without restriction (subject to
the provisions of ARTICLE III, Section 17 hereof, ARTICLE IV, Section 2 hereof,
ARTICLE V, Section 5 hereof, ARTICLE X, Section 3 hereof and the By-Laws).
Section 10. NO PREEMPTIVE RIGHTS
Unless otherwise expressly provided by the Trustees in the
authorization establishing and designating a Series or Class of Shares or as
otherwise expressly provided by the Trustees by Resolution, no holder of Shares
of that Series or Class, as such, shall have any preemptive or other right to
acquire, purchase or subscribe for any Shares or other securities of the Trust
which the Trust may hereafter issue or sell, whether of the same or of any other
Series or Class or otherwise.
Section 11. ACTIONS BY SHAREHOLDERS
Except to the extent inconsistent with the requirements of the1940 Act:
(a) No action may be brought by a Shareholder on behalf of the
Trust, or on behalf of any Series or Class, unless holders of not less
than ten percent (10%) of the Shares then outstanding (in the case of
an action brought on behalf of the Trust), or of not less than ten
percent (10%) of the outstanding Shares of such Series or Class (in the
case of an action brought on behalf of such Series or Class), join in
the bringing of such action.
(b) A holder of Shares of a particular Series or Class, in his
or her capacity as such, shall not be entitled to participate in a
derivative action or class action lawsuit on behalf of any other Series
or Class or on behalf of the holders of Shares of any other Series or
Class.
Section 12. EXCHANGE PRIVILEGES AND CONVERSION FEATURES
Subject to the requirements of the 1940 Act, the Trustees, at any time
and from time to time, by Resolution, may provide that (a) 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 (or Classes) or (b) Shares of any Series (or Class)
may or shall be converted into Shares of one or more other Series (or Classes),
in each case in accordance with such requirements and procedures as the Trustees
may deem appropriate. In the absence of such provision by the Trustees with
respect to a Series (or Class), Shareholders of that Series (or Class) shall
have no exchange privileges, and Shares of that Series (or Class) shall not be
subject to any conversion features.
Section 13. NO APPRAISAL RIGHTS
Shareholders shall have no appraisal rights with respect to their
Shares.
Section 14. OTHER ATTRIBUTES OF SHARES AND SHARE OWNERSHIP
Shares shall be deemed to be personal property giving only the rights,
powers, privileges and preferences provided herein, notwithstanding the nature
of the property held by the Trust or any Series thereof. Every Person who
purchases a Share on the terms determined by the Trustees under and in
accordance with ARTICLE III, Section 3 hereof and who is recorded on the books
of the Trust or of a transfer or similar agent of the Trust shall be deemed to
have complied with the conditions for becoming a beneficial owner in an interest
in the Trust and, by virtue of the foregoing, shall be held to have expressly
assented to, and to have agreed to be bound by, the terms hereof and to have
become a party hereto; provided, however, that no Shareholder shall be required
to execute this Declaration of Trust unless the Trustees determine otherwise.
Each holder of Shares shall upon demand by the Trustees disclose to the Trustees
in writing such information with respect to such holder's direct and indirect
ownership of Shares as the Trustees may deem necessary to comply with the
requirements of any law or taxing authority. As Shares of a Series represent
only an undivided beneficial interest in the assets associated with that Series,
a holder or beneficial owner of Shares shall have no right, title or interest in
or to any specific Trust Property, nor shall such holder or beneficial owner
have any right to call for a partition or division, or possession, of the same
or for an accounting. The death of a Shareholder during the existence of this
Trust shall not operate to annul or dissolve this Trust or to terminate any
Series or Class, nor entitle the representative of any deceased Shareholder to
an accounting or to take any action in court or elsewhere against the Trust or
the Trustees, but any such representative shall be entitled only to the same
rights to which said deceased Shareholder would have been entitled under this
Declaration of Trust but for such Shareholder's death.
Section 15. FRACTIONAL SHARES
Any outstanding fractional Share of a Series (or Class) shall carry
proportionately all the rights, powers, privileges, preferences and duties of a
whole Share of that Series (or Class), including rights with respect to voting
and receipt of dividends and other distributions, as well as rights accorded to
Shares of such Series (or Class) in connection with (a) the redemption or
purchase of such Shares by the Trust or (b) the dissolution of the Trust or the
termination of such Series (or Class).
Section 16. TREASURY SHARES
Any Shares redeemed, purchased or otherwise acquired by the Trust shall
be deemed to be treasury shares and shall not be canceled (unless the Trustees
provide otherwise at or subsequent to the time of such redemption, purchase or
acquisition).
The Trustees may cause the Trust from time to time to reissue treasury
shares in accordance with ARTICLE III, Section 3 hereof.
The Trustees may classify or reclassify any unissued Shares or any
Shares redeemed, purchased or otherwise acquired by the Trust, regardless of
Series or Class, into one or more Series or Classes that have been or may be
authorized from time to time under and in accordance with ARTICLE III, Section 1
hereof.
Shares held by the Trust as treasury shares shall not be considered
outstanding for any purpose of this Declaration of Trust and, in that
connection, shall not confer any voting rights on the Trust or the Trustees, nor
shall such Shares be entitled to any dividends or other distributions declared
or paid on or with respect to Shares.
Section 17. OWNERSHIP AND TRANSFER OF SHARES
The ownership and transfer of Shares shall be recorded on the books of
the Trust or of a transfer or similar agent for the Trust, which books shall be
maintained separately and distinctly for the Shares of each Series (and Class).
No certificates certifying the ownership of Shares shall be issued except as the
Trustees otherwise may determine from time to time. The Trustees may make such
rules as they deem appropriate for the issuance of share certificates, the
transfer of Shares of each Series (and Class) and similar matters. The record
books of the Trust as kept by the Trust or by any transfer or similar agent, as
the case may be, shall be conclusive as to who are the holders of Shares of each
Series (and Class) and as to the number of Shares of each Series (and Class)
held from time to time by each.
Section 18. COMBINATION OF SHARES
The Trustees, at any time and from time to time, may divide or combine
the Shares of any particular Series into a greater or lesser number of Shares of
that Series (with corresponding adjustments being made to the number of Shares
of each Class within such Series). No such division or combination shall be
deemed, for purposes of ARTICLE VIII, Section 1 hereof or for any other purpose,
to adversely affect to a material degree the rights, powers, privileges,
preferences or duties of the Shares of that Series (or Class) or of the Shares
of any other Series (or Class).
Section 19. RIGHTS OF SHAREHOLDERS TO INSPECT RECORDS
(a) In addition to the rights provided for in the first
sentence of ARTICLE X, Section 1 hereof, each holder of Shares has the
right, subject to such reasonable standards (including standards
governing what information and documents are to be furnished at what
time and location and at whose expense) as may be established from time
to time by the Trustees, to obtain from the Trust from time to time
upon reasonable demand for any purpose reasonably related to the
holder's interest as a holder of Shares:
(1) any written powers of attorney pursuant to which
this Declaration of Trust and any amendments hereto and any
certificates filed by or on behalf of this Trust with the
Office of the Secretary of State of the State of Delaware
pursuant to the Act have been executed;
(2) a current list of the name and last known
business, residence or mailing address of each record holder
of Shares;
(3) information regarding the business and
financial condition of the Trust; and
(4) other information regarding the affairs of
the Trust as is reasonable.
(b) Notwithstanding the foregoing, the Trustees shall have the
right to keep confidential from the holders of Shares, for such period
of time as the Trustees deem reasonable, any information that the
Trustees reasonably believe to be in the nature of trade secrets or
other information the disclosure of which the Trustees in good faith
believe is not in the best interest of the Trust or could damage the
Trust or its business or which the Trust is required by law or by
agreement with a third party to keep confidential.
(c) Any demand by a holder of Shares under this Section 19
shall be in writing under oath and shall state the purpose of such
demand.
Section 20. PURCHASE OF SHARES BY TRUSTEES, OFFICERS, EMPLOYEES
AND AGENTS OF TRUST
Any Trustee, officer, employee or agent of the Trust, and any
organization in which any of the foregoing has an interest, may acquire, own,
hold, redeem and dispose of Shares of any Series or Class to the same extent as
if such person were not a Trustee, officer, employee or agent of the Trust; and
the Trust may issue and sell or cause to be issued and sold and may purchase or
redeem or cause to be purchased or redeemed Shares of any Series or Class to or
from any such person or organization subject only to the provisions of the 1940
Act and to the general limitations, restrictions or other provisions applicable
to the issuance, sale, purchase or redemption of Shares of such Series or Class
generally.
ARTICLE IV.
DETERMINATION OF NET ASSET VALUE, DIVIDENDS AND DISTRIBUTIONS, AND REDEMPTIONS
Section 1. DETERMINATION OF NET ASSET VALUE
The Trustees shall prescribe and set forth in the By-laws or other
written instrument such bases and times for determining the value of Trust
Property, the net asset value of each Series and Class and net income
attributable to the Shares of each Series and Class as they may deem appropriate
consistent with the requirements of the 1940 Act and generally accepted
accounting principles. To the extent not inconsistent with the requirements of
the 1940 Act and generally accepted accounting principles, the Trustees may
determine which items shall be treated as income and which items as capital; and
each such determination shall be conclusive and binding upon the Shareholders of
all Series and Classes for all purposes.
The Trustees may determine to maintain the Net Asset Value per Share of
any Series at a designated constant dollar amount and in connection therewith
may adopt procedures not inconsistent with the requirements of the 1940 Act for
the continuing declarations of income attributable to that Series as dividends
payable in additional Shares of that Series at the designated constant dollar
amount and for the handling of any losses attributable to that Series. To the
extent not inconsistent with the requirements of the 1940 Act, each Shareholder
of the Trust, by his or her investment in any Series with respect to which the
Trustees shall have adopted any such procedures, shall be held to have agreed to
be bound by the following provisions of this paragraph in the event of any such
loss. If, for any reason, the net income of any Series, determined at any time,
is a negative amount, the Trustees may, with respect to that Series, (a) offset
each Shareholder's pro rata share of such negative amount against the accrued
dividend account of such Shareholder; (b) reduce the number of outstanding
Shares of such Series by reducing the number of Shares in the account of each
Shareholder of such Series by a pro rata portion of that number of whole and
fractional Shares which represents such negative amount; (c) cause to be
recorded on the books of such Series an asset account in the amount of such
negative amount (provided that the same shall thereupon become an asset
associated with such Series but shall not be paid to any Shareholder),which
account may be reduced by the amount of dividends declared thereafter upon the
outstanding Shares of such Series from and including the day such negative
amount is experienced until such asset account is reduced to zero; (d) combine
the methods described in clauses (a), (b) and (c) of this sentence; or (e) take
any other action they may deem appropriate, in order to cause (or in order to
assist in causing) the Net Asset Value per Share of such Series to remain at a
constant amount per outstanding Share immediately after each such determination.
The Trustees also may determine not to declare a dividend out of net income for
the purpose of causing the Net Asset Value per Share to be increased. The
Trustees shall not be required to, but at any time may, adopt, discontinue or
amend the practice of maintaining the Net Asset Value per Share of a Series at a
designated dollar amount. In event that any Series is divided into Classes, the
provisions of this paragraph, to the extent applicable as determined by the
Trustees consistent with the requirements of the 1940 Act, may be applied
equally to each such Class.
The Trustees may delegate any of their powers, authority, functions and
duties under this Section 1 with respect to determining the value of Trust
Property and the net asset value of each Series (and Class) or with respect to a
suspension of the determination of net asset value to an officer or officers or
agent or agents of the Trust designated from time to time by the Trustees.
Section 2. DIVIDENDS AND OTHER DISTRIBUTIONS
The Trustees from time to time may declare and cause the Trust to pay
dividends (including, without limitation, dividends paid in Shares) or other
distributions on or with respect to the Shares of any Series or Class, in such
amounts and with such frequency as the Trustees in their sole discretion may
deem appropriate (subject, however, to the provisions of ARTICLE III hereof and
applicable law). Without limiting the generality of the foregoing, such
dividends or other distributions may be declared and paid daily or otherwise
pursuant to a standing resolution or resolutions adopted only once or with such
frequency as the Trustees may deem appropriate.
For the purpose of determining the Shareholders who are entitled to
receive payment of any dividend or other distribution, the Trustees may from
time to time fix a date and time, by standing resolution or otherwise (any such
date and time being herein referred to as a "Distribution Record Date"), for
determining the Shareholders who are entitled to receive such payment, and in
such case only Shareholders of record as of the Distribution Record Date shall
have that right, notwithstanding any transfer of Shares on the record books of
the Trust after the Distribution Record Date. Without fixing a Distribution
Record Date, the Trustees may close the register or transfer books for one or
more Series (or Classes) for all or any part of the period (not exceeding ten
(10) days) preceding the date for the payment of a dividend or other
distribution. Nothing in this Declaration of Trust shall be construed as
precluding the Trustees from setting different Distribution Record Dates for
different Series (or Classes).
Subject to the requirements of the 1940 Act and ARTICLE IV, Section 5
hereof, any dividend or other distribution on or with respect to the Shares of a
Series or Class may be made in cash, Shares of such Series or Class or in-kind
(that is, in securities or other property associated with the Series on or with
respect to which such dividend or distribution is being paid), or in any
combination thereof, as the Trustees may deem appropriate.
Section 3. REDEMPTIONS AT THE OPTION OF THE SHAREHOLDER
Each holder of record of Shares of a particular Series shall have the
right at such times as may be permitted by this Declaration of Trust and as
otherwise required by the 1940 Act to require the applicable Series of the Trust
to redeem all or any number of his or her Shares of that Series at a redemption
price equal to the Net Asset Value per Share of that Series (or applicable Class
thereof) next determined (under and in accordance with ARTICLE IV, Section 1
hereof) after the Shares are properly tendered for redemption; provided,
however, that subject to the requirements of the 1940 Act, the Trustees may
cause the Trust to impose a redemption charge upon redemptions of Shares in such
manner and amount or amounts and at such time or times as the Trustees may deem
appropriate. A Shareholder will not be deemed properly to have tendered Shares
for redemption unless and until he or she shall have complied with such
procedures for redemption as the Trustees may from time to time deem
appropriate, including, without limitation, procedures requiring the redeeming
Shareholder to deposit at the office of the applicable transfer or similar agent
a written request or such other form of request as the Trustees may from time to
time deem appropriate (together with such accompanying documentation as the
Trustees may from time to time deem appropriate) requesting that the applicable
Series of the Trust redeem such Shares in accordance with this Section 3.
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 inadvisable or undesirable, the Trust,
subject to the requirements of the 1940 Act and ARTICLE IV, Section 5 hereof,
may make payment wholly or partly in-kind (that is, in securities or other
property associated with the Series of which the Shares being redeemed are
part).
Notwithstanding the foregoing, the Trustees may cause the Trust to
postpone payment of the redemption price or to suspend the right of the holders
of the Shares of any Series to require the Trust to redeem Shares of that Series
during any period or at any time when and to the extent permissible under the
1940 Act. Such suspension shall take effect at such time as the Trustees shall
determine but not later than the close of business on the business day next
following the declaration of suspension, and thereafter there shall be no right
of redemption or payment until the Trustees shall declare the suspension at an
end. In the case of a suspension of the right of redemption, a Shareholder
either may withdraw his or her request for redemption or receive payment based
on the Net Asset Value per Share next determined after the termination of the
suspension, in accordance with such procedures as the Trustees from time to time
may deem appropriate. In the event that any Series is divided into Classes, the
provisions of this paragraph, to the extent applicable as determined by the
Trustees consistent with the requirements of the 1940 Act, may be applied
equally to each such Class.
Section 4. REDEMPTIONS AT THE OPTION OF THE TRUST
The Trustees, at any time and from time to time, may cause the Trust to
redeem Shares of a particular Series or Class held by any holder thereof at the
Net Asset Value per Share thereof (determined under and in accordance with
ARTICLE IV, Section 1 hereof): (a) if at such time the Shares of such Series or
Class held by such holder have an aggregate net asset value of less than an
amount determined from time to time by the Trustees and set forth in the Trust's
prospectus or statement of additional information relating to such Series or
Class prior to the time such Shares were purchased, as the minimum aggregate net
asset value that must be maintained by a holder with respect to such Shares in
order for such Shares not to be subject to redemption at the option of the
Trust; (b) if at such time such holder holds Shares of the Trust or of any
Series or Class in excess of a percentage determined from time to time by the
Trustees and set forth in the Trust's prospectus or statement of additional
information relating to such Series or Class prior to the time such Shares were
purchased, as the maximum percentage of Shares of the Trust or of such Series or
Class that may be held by a holder in order for Shares held by a holder not to
be subject to redemption at the option of the Trust; or (c) if the Trustees
shall determine that direct or indirect ownership of Shares of any Series has or
may become concentrated in any Person to an extent which would disqualify such
Series as a regulated investment company under the Internal Revenue Code of
1986, as amended (in which case the Trustees may (i) call for 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 and (ii) refuse to transfer or issue Shares
to any Person whose acquisition of Shares in question would result in such
disqualification).
No redemption shall be effected pursuant to subSections (a) or (b) of
this Section 4 unless the Trust has given the holder at least thirty (30) days
notice of the Trust's intention to redeem and such holder is given an
opportunity, within such thirty-day period, to adjust his or her holdings so as
to avoid the application of this Section 4.
Redemptions effected pursuant to this Section 4 shall otherwise be
effected in the manner provided in ARTICLE IV, Section 3 hereof.
Section 5. DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS IN-KIND
In the event the Trustees determine that dividends or other
distributions on or with respect to Shares of a particular Series or Class
(including, for purposes of this Section 5, without limitation, distributions
upon redemption of Shares of such Series or Class or in connection with the
dissolution of the Trust or the termination of such Series or Class) shall be
paid wholly or partly in-kind, the Trustees first must determine that such
payments shall not be prejudicial to the interest of the remaining Shareholders
of such Series. The selection and quantity of securities or other property to be
paid in-kind shall be determined by or under the authority of the Trustees;
provided, however, that the value of the securities or other property paid
in-kind shall be the value of such securities or other property used in
determining the Net Asset Value of the Series with which such securities or
other property are associated. In no case shall the Trust or Trustees be liable
for any delay of any Person in transferring securities or other property
selected for delivery as all or part of any payment in-kind.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. VOTING POWERS
Shareholders shall have power to vote only (a) for the election and
removal of Trustees to the extent provided in ARTICLE VI, Sections 3 and 4
hereof, respectively; (b) to the extent provided in ARTICLES VIII and IX hereof;
(c) with respect to such additional matters relating to this Trust or any Series
or Class as may be required by the 1940 Act or any registration of this Trust or
any Series or Class with the Commission (or any successor agency) or any State;
and (d) with respect to such additional matters as the Trustees may deem
appropriate; provided, however, that in no event shall holders of Shares of a
Series or Class be entitled to vote such Shares with respect to any matter that
does not affect any interest of such Series or Class, as the case may be, unless
otherwise required by the 1940 Act.
Each whole Share shall carry one vote as to any matter on which it is
entitled to be voted, and each fractional Share shall carry a proportionate
fractional vote.
In the case of (a) the election or removal of Trustees and (b) an
amendment to the provisions of ARTICLE VIII hereof, and where required by the
1940 Act or by any registration of this Trust with the Commission (or any
successor agency) or any State, all Shares entitled to be voted shall be voted
in the aggregate without differentiation among the separate Series or Classes.
In all other cases, (a) where Rule 18f-3 under the 1940 Act does not apply in
connection with the matter to be voted on and such matter does not involve an
amendment to this Declaration of Trust that would adversely affect to a material
degree the rights, powers, privileges, preferences or duties of Shares of a
particular Class in a manner different from the Shares of any other Class within
the same Series, all Shares entitled to be voted with respect to the matter
shall be voted separately by individual Series and (b) where Rule 18f-3 under
the 1940 Act applies in connection with the matter to be voted on, or where such
matter involves an amendment to this Declaration of Trust that would adversely
affect to a material degree the rights, powers, privileges, preferences or
duties of Shares of a particular Class in a manner different from the Shares of
any other Class within the same Series, all Shares entitled to be voted with
respect to the matter shall be voted separately by individual Class; provided,
however, that the Trustees in their sole discretion may determine that, in
situations where the Shares of more than one Series (or Class) are entitled to
be voted with respect to a matter, such Shares shall be voted as a single class
with respect to such matter if and to the extent permitted under the 1940 Act.
There shall be no cumulative voting in the election of Trustees or for
any other purpose.
Shares may be voted in person or by written proxy or in any manner
provided for in the By-Laws; provided, however, that in the event a proposal by
anyone other than the Trustees or the officers 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 Trustees or the officers of the Trust, Shares may be
voted only in person or by written proxy. A proxy with respect to Shares held in
the name of two or more Persons shall be valid if executed by any one of them
unless at or prior to exercise of the proxy the Trust receives a specific
written notice to the contrary from any one of them. A proxy purporting to be
executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights hereunder
that pertain to Shares and may take any action required or permitted by law,
this Declaration of Trust or any of the By-Laws of the Trust to be taken by
Shareholders (including, without limitation, the right to amend this Declaration
of Trust and the By-Laws).
Section 2. MEETINGS
No annual or regular meetings of Shareholders are required. The
Trustees, their Chairman or the President of the Trust may from time to time
call and give notice of meetings of the Shareholders in general, or of the
Shareholders of any one or more Series or Classes in particular, for the purpose
of taking action upon any matter requiring Shareholder authorization or approval
as herein provided or upon any other matter as the Trustees may deem
appropriate. The Trustees, their Chairman or the President of the Trust shall
promptly call and give notice of a meeting of Shareholders for the purpose of
voting upon the question of removal of any Trustee or Trustees when requested to
do so in writing by Shareholders holding of record at least ten percent (10%) of
the Shares then outstanding. In that connection, the provisions of the third,
fourth and fifth paragraphs of Section 16(c) of the 1940 Act shall apply to this
Trust as though this Trust were subject to those provisions. The Trustees, their
Chairman or the President of the Trust shall call and give notice of a meeting
within thirty (30) days after written application by Shareholders holding of
record at least ten percent (10%) of the Shares then outstanding entitled to be
voted on the matter requesting a meeting be called for the purpose of taking
action upon a matter requiring authorization or approval of the holders of such
Shares under the provisions of ARTICLE V, Sections l(b) or (c) hereof.
A meeting of Shareholders may be held at any place designated by the
Trustees, within or without the State of Delaware.
Section 3. QUORUM AND REQUIRED VOTE
In cases where all Shares of the Trust are to be voted in the aggregate
without differentiation among the separate Series and Classes pursuant to the
terms of this Declaration of Trust, the holders of at least 33 2/3% of the
Shares entitled to be voted in person or by proxy at a meeting of the holders of
such Shares shall constitute a quorum for the transaction of business at a
meeting of such holders. In cases where Shares of a Series (or Class) are to be
voted separately by Series (or Class) pursuant to the terms of this Declaration
of Trust, the holders of more than 50% of the Shares of such Series (or Class)
entitled to be voted in person or by proxy at a meeting of the holders of such
Shares shall constitute a quorum for the transaction of business at a meeting of
such holders. In cases where Shares of more than one but fewer than all Series
(or Classes) are to be voted as a single class pursuant to the terms of this
Declaration of Trust, the holders of more than 50% of such Shares entitled to be
voted in person or by proxy at a meeting of the holders of such Shares shall
constitute a quorum for the transaction of business at a meeting of such
holders.
Any meeting of Shareholders may be adjourned from time to time to
another date and time by a majority of the votes properly cast in person or by
proxy upon the question of adjournment, whether or not a quorum is present, and
the meeting so adjourned may be held within a reasonable time after the date set
for the original meeting, without the necessity for giving further notice.
Subject to the provisions of the preceding paragraph, when a quorum of
holders of Shares entitled to be voted on the matter is present at any meeting,
a majority of the votes properly cast in person or by proxy shall decide any
questions and a plurality shall elect a Trustee, except where a larger
percentage is required by the 1940 Act, by any express provision of this
Declaration of Trust or by any registration of this Trust with the Commission
(or any successor agency) or any State.
Section 4. ACTION BY WRITTEN CONSENT
Any action requiring authorization or approval of Shareholders may be
taken without a meeting of such Shareholders and without prior notice if holders
of at least 66 2/3% of the Shares entitled to be voted on the matter consent to
the action in writing and such written consent or consents are filed with the
records of the meetings of Shareholders (except where a larger percentage is
required by the 1940 Act or by any express provision of this Declaration of
Trust). Such consent shall be treated for all purposes as a vote taken at a
meeting of such Shareholders.
Section 5. RECORD DATES
For the purpose of determining the Shareholders who are entitled to
notice of and to vote or act at any meeting or any adjournment thereof, the
Trustees may fix a date and time, which shall be not more than ninety (90) days
prior to the date of such meeting, as the date and time of record (a "Meeting
Record Date") for determining the Shareholders who are entitled to receive
notice of and to vote or act at such meeting and any adjournment thereof, and in
such case only Shareholders of record as of the Meeting Record Date shall have
that right, notwithstanding any transfer of Shares on the record books of the
Trust after the Meeting Record Date. Without fixing a Meeting Record Date, the
Trustees may close the register or transfer books for one or more Series (or
Classes) for all or any part of the period (not exceeding ten (10) days)
preceding the date of a meeting of Shareholders. Nothing in this Declaration of
Trust shall be construed as precluding the Trustees from setting different
Meeting Record Dates for different Series (or Classes).
Section 6. ADDITIONAL PROVISIONS
The By-Laws may include further provisions for Shareholders' votes and
meetings and related matters not inconsistent with the provisions hereof.
ARTICLE VI.
THE TRUSTEES
Section 1. NUMBER AND QUALIFICATIONS
Prior to any offering of Shares, there shall be an Initial Trustee and
thereafter the number of Trustees shall be fixed at such number as the Trustees
from time to time hereafter may fix by Resolution; provided, however, that the
number of authorized Trustees shall in no event be less than one (1) nor more
than fifteen (15). A Trustee must be a natural person at least 21 years of age
who is not under a legal disability. A Trustee need not be a Shareholder, a
citizen of the United States or a resident of the State of Delaware. No decrease
in the authorized number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his or her term, but the
authorized number of Trustees may be decreased in conjunction with a vacancy
created by the death, physical or mental incapacity, resignation or removal of a
Trustee.
Section 2. INITIAL TRUSTEE
The initial Trustee shall be the person whose signature appears below
on the signature page dated March 25, 2000 (the "Initial Trustee").
Section 3. ELECTION OF TRUSTEES
Except for the Initial Trustee and Trustees appointed to fill vacancies
pursuant to ARTICLE VI, Section 5 hereof, Trustees shall be elected by
Shareholders at such meetings of Shareholders as the Trustees may from time to
time determine to call in their sole discretion; provided, however, that the
Trustees shall call meetings of Shareholders for the purpose of electing
Trustees at such time or times and in such manner as may be required by the 1940
Act.
Section 4. TERM OF OFFICE
Each Trustee shall serve and hold office until the next meeting of
Shareholders held for the purpose of considering the reelection of such Trustee
or the election of a successor to such Trustee and until his or her successor is
elected and qualified (or until the earlier death or physical or mental
incapacity of such Trustee), and any Trustee who is appointed by the Trustees to
fill a vacancy as provided in ARTICLE VI, Section 5 hereof shall have the same
remaining term of his or her predecessor, if any, or such term as the Trustees,
by Resolution, may determine; provided, however, that without the need for a
prior or subsequent accounting, (a) any Trustee may resign at any time by a
written instrument signed by him or her and delivered to any officer of the
Trust or to a meeting of the Trustees, such resignation to be effective upon
such delivery unless such written instrument specifies a later effective date;
(b) any Trustee may be removed at any time with or without cause by a written
instrument signed by at least two-thirds of the number of Trustees then in
office (including, solely for the purpose of determining two-thirds of the
number of the Trustees then in office, the Trustee sought to be removed), such
removal to be effective upon the date specified in such written instrument; and
(c) any Trustee may be removed at any time with or without cause (i) at any
meeting of the Shareholders called for that purpose by a vote of Shareholders
holding of record at least 66 2/3% of the outstanding Shares, properly cast in
person or by proxy at such meeting or (ii) by way of a written instrument signed
by Shareholders holding of record at least 66 2/3% of the outstanding Shares,
and delivered to an officer of the Trust. A meeting of Shareholders for the
purpose of removing one or more Trustees may be called (a) by the Trustees or
(b) at the request of Shareholders in accordance with the provisions of ARTICLE
V, Section 2 hereof.
Notwithstanding the foregoing, if, after giving effect to the
resignation or removal of a Trustee, the Trust would not have any Trustee then
in office, such resignation or removal shall not become effective unless and
until there shall be at least one Trustee then in office.
Section 5. VACANCIES AND APPOINTMENTS
In case of the death, physical or mental incapacity, resignation or
removal of a Trustee, or an increase in the authorized number of Trustees, a
vacancy shall occur. 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 the Trustees. Subject to (a) the provisions of the
last sentence of ARTICLE VI, Section 1 hereof and (b) the right of the Trustees,
in their sole discretion, to call a meeting of Shareholders for the purpose of
electing a Trustee or Trustees, as provided in ARTICLE VI, Section 3 hereof, and
subject in all cases to the proviso to ARTICLE VI, Section 3 hereof, in the case
of a vacancy, the remaining Trustees, by Resolution, shall appoint a person to
fill such vacancy in a manner consistent with the requirements of the 1940 Act
and the By-Laws (including, without limitation, provisions of the 1940 Act
relating to the number of Interested Persons who may serve as Trustees). Such
appointment shall be recorded in the minutes of a meeting of the Trustees,
whereupon such appointment shall become effective if accepted by the person so
appointed by becoming a signatory to this Declaration of Trust as a Trustee.
An appointment of a Trustee may be made by the Trustees, by Resolution,
in anticipation of a vacancy to occur by reason of the resignation of a Trustee
or Trustees or an increase in the authorized number of Trustees, provided that
said appointment shall become effective only at or after the effective date of
said resignation or increase.
Section 6. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
The death, physical or mental incapacity, resignation or removal of one
or more Trustees, or all of them, during the existence of this Trust shall not
operate to annul or dissolve this Trust, to terminate any Series or Class or to
revoke any existing agency created pursuant to the terms of this Declaration of
Trust. Whenever a vacancy in the authorized number of Trustees shall occur,
until such vacancy is filled as provided in ARTICLE VI, Section 5 hereof, the
Trustees then in office, regardless of their number, but subject to the
requirements of the 1940 Act, shall have all the powers and authority granted to
the Trustees hereunder and shall discharge all the duties imposed upon the
Trustees by this Declaration of Trust. 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.
Section 7. ACTION BY THE TRUSTEES
Except as otherwise required by the 1940 Act or by the provisions of
ARTICLE VI, Section 4(b) hereof, and except where this Declaration of Trust
expressly provides that an action to be taken by Trustees shall be taken by
Resolution, any action to be taken by the Trustees on behalf of this Trust or
any Series or Class may be taken by (a) a majority of the Trustees present at a
duly constituted meeting of the Trustees (a quorum, consisting of at least a
majority of the Trustees then in office, being present), including any meeting
held by means of a conference telephone or other communications equipment
through which all persons participating in the meeting can hear each other at
the same time or (b) written consents signed by a majority of the Trustees then
in office; provided, however, that whether or not a quorum is present, a
majority of the Trustees present at a duly constituted meeting of the Trustees
may adjourn the meeting to another place and time.
Section 8. CHAIRMAN OF THE TRUSTEES
The Trustees may appoint one of their number to be Chairman of the
Trustees. The Chairman shall preside at all meetings of the Trustees to the
extent reasonably feasible and, to the extent provided by the Trustees, shall be
responsible for the execution of policies established by the Trustees and the
administration of the Trust. The Chairman may be (but is not required to be) the
chief executive, financial and/or accounting officer of the Trust.
Section 9. PRINCIPAL TRANSACTIONS
Except to the extent prohibited by the 1940 Act, the Trustees may, on behalf of
the Trust, buy any securities from or sell any securities to, or lend any Trust
Property to, any Trustee or any officer or employee of the Trust or any
organization in which any such person has a direct or indirect interest, acting
as principal.
Section 10. POWERS
Subject only to such restrictions as are set forth in this Declaration
of Trust, the 1940 Act and other applicable law, the Trustees shall have
exclusive control over the Trust Property and over the management of the
business and affairs of the Trust to the same extent as if the Trustees were the
sole owners and holders of the Trust Property and business and affairs in their
own right, and shall possess and may exercise all the powers and authority which
may be possessed and exercised by trustees of a business trust established under
the Act; provided, however, that the foregoing shall not be construed to
prohibit the Trustees from delegating their powers and authority in the manner
described herein.
Without limiting the generality of the foregoing, in addition to the
powers and authority granted to the Trustees elsewhere herein, the Trustees
shall have full power and authority, for and on behalf of any one or more of the
Trust and the Series and Classes, to do or cause the Trust or other Persons to
do any one or more of the following, subject only to such restrictions as may be
set forth in this Declaration of Trust, the 1940 Act and other applicable law:
(a) To conduct, operate and carry on the business and affairs
of an open-end management investment company organized as a series
company and registered under the 1940 Act and do any and all acts or
things (including, without limitation, the making and execution of such
agreements, contracts and instruments) as the Trustees may deem
necessary, convenient, appropriate, incidental or customary in
connection therewith or in the interest of any one or more of the Trust
and the Series and Classes (it being understood that, for purposes of
this Section 10(a), any good faith determination by the Trustees as to
what is in the interest of any one or more of the Trust and the Series
and Classes shall be conclusive);
(b) To adopt by-laws, not inconsistent with this Declaration
of Trust, containing additional provisions relating to the conduct of
the business and affairs of the Trust, and amend and repeal them to the
extent that such by-laws do not expressly and exclusively reserve that
right to the Shareholders;
(c) To conduct, operate and carry on the business and affairs
of the Trust, and maintain offices of the Trust, both within and
without the State of Delaware, in any and all other States and in any
and all foreign jurisdictions;
(d) To elect and remove such officers and hire and terminate
such employees, and provide for the compensation of any or all of the
foregoing (any one or more of any of whom may be a Trustee), as the
Trustees may deem appropriate;
(e) To establish, by appointing from the Trustees' own number
or from among other Persons, and terminate, any one or more committees
consisting of two or more Trustees or other Persons, and adopt
committee charters providing for such responsibilities, membership and
other characteristics of such committees as the Trustees may deem
appropriate;
(f) To delegate such powers, authority, functions and duties
(including, without limitation, those set forth in ARTICLE IV, Section
1 hereof) as the Trustees may deem appropriate to (i) any officer,
employee or Service Provider (and authorize any of the foregoing to
employ subagents and to delegate, to any other Person, any of the
powers, authority, functions or duties so delegated to them); (ii) any
committee consisting of Trustees or other Persons (including, without
limitation, (A) an executive committee consisting of less than the
whole number of Trustees then in office, which may, when the Trustees
are not in session, exercise some or all of the powers and authority of
the Trustees and act for and bind the Trustees and the Trust, as if the
acts of such committee were the acts of all the Trustees then in
office, and (B) a special committee which may exercise some or all of
the powers and authority of the Trustees, and act for and bind the
Trustees and the Trust, as if the acts of such committee were the acts
of all the Trustees then in office, with respect to the institution,
prosecution, dismissal, settlement, review or investigation of any
claim, action, suit or proceeding (civil, criminal, administrative or
other, including appeals) which shall be pending or threatened to be
brought before any court, administrative agency or other adjudicatory
body); and (iii) other Trustees, to the extent and in the manner
provided in the By-Laws;
(g) To provide for the distribution of Shares either through
one or more Principal Underwriters or distributors, as described more
fully in ARTICLE VI, Section 13(b) hereof or by the Trust itself, or
both, or otherwise pursuant to a plan of distribution of any kind;
(h) To interpret the investment objectives, policies
restrictions and limitations applicable to a particular Series;
(i) To invest and reinvest cash and other property, hold cash
and other property uninvested, and subscribe for, invest in, reinvest
in, purchase or otherwise acquire, own, hold, pledge, sell, assign,
transfer, trade, exchange, distribute, write options on, lend, and deal
in or dispose of contracts for the future acquisition or delivery of,
securities and instruments of every nature and kind, including, without
limitation, all types of bonds, debentures, common stocks, preferred
stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, futures
contracts, options on futures contracts, swaps, caps, collars, floors
and other securities and instruments of any nature and kind, issued,
created, guaranteed or sponsored by any and all Persons, including,
without limitation, the United States government, States, foreign
governments, any political subdivision, agency or instrumentality of
any of the foregoing or of any combination of the foregoing, any
supranational organization, any bank or savings institution, or any
corporation or other entity organized under the laws of the United
States, any State, or any foreign jurisdiction, or in "when issued"
contracts for any such securities;
(j) To sell, exchange, lend, pledge, mortgage, hypothecate or
lease, or write options with respect to or otherwise deal in any
property rights relating to, any or all of the Trust Property or the
assets associated with any Series;
(k) To vote or give assent or otherwise act, or exercise any
and all rights, powers and privileges of ownership or interest, 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 may deem appropriate, granting to such Person or Persons such
power and discretion with relation to the Trust Property as the
Trustees may deem appropriate (including, without limitation, the power
and authority to act in the name of the Trust or the Trustees; to sign
documents and to act as attorney-in-fact for the Trust or the
Trustees);
(l) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or
other property; and to pay calls or subscriptions with respect to any
security held by or for the account of the Trust;
(m) To hold any security or other property in a form not
indicating that it is trust property, whether in bearer, book entry,
unregistered or other negotiable form; to deposit, or authorize any
custodian or subcustodian of Trust Property to deposit, all or any part
of the Trust Property in one or more systems for the central handling
of securities or other instruments or with a Federal Reserve Bank (each
of the foregoing, a "Securities Depository"), and authorize any
Securities Depository to utilize the services of one or more other
Securities Depositories or agents; and to hold all or any part of the
Trust Property in the name(s) of one or more custodians, subcustodians,
Securities Depositories, nominees or otherwise;
(n) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of
any security which is or was held by or for the account of the Trust;
and to consent to any contract, lease, mortgage, purchase or sale of
property by such corporation or issuer;
(o) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection deposit any security with, or transfer any security to, any
such committee, depositary or trustee, and delegate to them such power
and authority with relation to any security (whether or not so
deposited or transferred) as the Trustees may deem appropriate; and to
agree to pay, and pay, such portion of the expenses and compensation of
such committee, depositary or trustee as the Trustees may deem
appropriate;
(p) To compromise, arbitrate or otherwise adjust claims in
favor of or against this Trust or any Series or any matter in
controversy, including, without limitation, claims for taxes;
(q) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(r) To borrow money or other property in the name of the Trust
or of any Series exclusively for the purposes of the Trust or of such
Series, and in that connection issue notes or other evidences of
indebtedness;
(s) To endorse or guarantee the payment of any notes or other
obligations or undertake the performance of any obligation or
engagement of any Person; and to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
(t) To purchase and pay for entirely out of Trust Property
such insurance as the Trustees may deem appropriate for the conduct of
the business and affairs of the Trust, including, without limitation,
insurance policies insuring the assets of the Trust or payment of
distributions or principal on the Trust's portfolio investments, and
insurance policies insuring the Shareholders and Trustees and officers,
employees and Service Providers of the Trust or any thereof (or any
Person connected therewith), individually against all claims and
liabilities of every nature arising by reason of holding or having held
Shares or holding 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 in any such capacity, 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;
(u) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, including the purchasing of life insurance
and annuity contracts as a means of providing retirement and other
benefits, for any or all of the Trustees, officers, employees and
agents of the Trust;
(v) To adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans and related plans as the
Trustees may deem appropriate;
(w) To redeem Shares in accordance with the provisions of
ARTICLE IV hereof and purchase or otherwise acquire Shares; and
(x) To do everything that the Trustees may deem necessary,
convenient, appropriate, incidental or customary for the accomplishment
of any valid purpose or the attainment of any valid object or for the
furtherance of any power herein before set forth, either alone or in
association with others, the foregoing clauses to be construed as
objects as well as powers.
In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of (a) a grant of power and authority to the
Trustees and (b) the power and authority of the Trustees to delegate any of
their powers and authority, and the enumeration of any specific powers shall not
be construed as limiting or restricting in any manner the general powers of the
Trustees. The Trust and the Trustees shall not be limited to investing in
securities or instruments maturing before the possible dissolution of the Trust
or the termination of one or more Series. The Trust and the Trustees shall not
in any way be bound or limited by any present or future law or custom in regard
to investments by trustees or other fiduciaries, but shall have full power and
authority to make any and all investments which they may deem appropriate to
accomplish the purpose of the Trust or of any Series. No Person dealing with the
Trustees shall be bound to make any inquiry concerning the authority of the
Trustees or 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 the Trustees or upon its or their order. The Trust and the Trustees
shall not be required to resort to any court or other authority or to obtain an
order of any court or other authority to deal with any Trust Property or the
assets associated with any Series or take any other action hereunder.
Section 11. PAYMENT OF EXPENSES BY THE TRUST
The Trust, and not the Trustees, shall be responsible for all
liabilities, expenses, costs and charges incurred or arising in connection with
the Trust or any Series (or Class), or in connection with the management
thereof, and, subject to the other provisions of this Declaration of Trust, the
Trustees are authorized to pay or cause to be paid (which authorization carries
with it the authorization to reimburse themselves for), out of the principal or
income of the Trust or any Series (or Class), or partly out of such principal
and partly out of such income, all such liabilities, expenses, costs and
charges, including, without limitation: interest charges; taxes; brokerage fees
and commissions; expenses related to the issuance, redemption and purchase of
Shares; insurance premiums; fees, and expenses of third parties, including
Service Providers; fees of pricing, interest, dividend, credit and other
reporting services; costs of membership in trade associations;
telecommunications expenses; costs of preparing transmission expenses; auditing,
legal and compliance expenses; costs of creating the Trust and maintaining its
existence; costs of preparing and printing the Trust's prospectuses, statements
of additional information and shareholder reports and delivering them to
existing and prospective shareholders; expenses of meetings of shareholders and
proxy solicitations therefor; costs of maintaining books and accounts; costs of
reproduction, stationery and supplies, fees and expenses of the Trustees;
compensation of the Trust's officers and employees and costs of other personnel
performing services for the Trust; costs of Trustee meetings, Commission
registration fees and related expenses; State or foreign securities laws
registration fees and related expenses; and such non-recurring items as may
arise, including litigation to which the Trust or the Trustees or any of them is
a party, and, subject to the provisions of ARTICLE VII, Section 3 hereof, for
all losses and expenses incurred by them in administering the Trust, and for the
payment of such losses and expenses the Trustees shall have a lien on the assets
belonging to the appropriate Series, or in the case of a loss or an expense
allocable to more than one Series, on the assets of each such Series, prior to
any rights or interests of the Shareholders thereto. This Section shall not
preclude the Trust from directly paying any of the aforementioned liabilities,
expenses, costs or charges.
Section 12. OWNERSHIP OF ASSETS OF THE TRUST
The Trust Property (including Trust Property associated with the
various Series) shall be held separate and apart from any assets now or
hereafter held in any capacity other than as Trustee hereunder by the Trustees
or any successor Trustees. Legal right, title and interest in and to all Trust
Property (including all Trust Property associated with the various Series) and
the right to conduct the business and affairs of the Trust shall at all times be
considered as vested in the Trust as a separate legal entity under the Act,
except that the Trustees may cause or authorize legal right, title or interest
in or to any Trust Property to be held by or in the name of the Trustees or any
of them or as provided in ARTICLE VI, Section 10(m) hereof. To the extent that
legal right, title or interest in or to any Trust Property is vested in the
Trustees, upon the death, physical or mental incapacity, resignation or removal
of a Trustee, he or she automatically shall cease to have any such right, title
or interest, and such right, title or interest shall vest automatically in the
remaining Trustees and in each person who may thereafter become a Trustee. To
the maximum extent permitted by law, such cessation and vesting of right, title
and interest shall be effective whether or not conveyancing documents have been
executed and delivered and whether or not any other action has been taken.
Section 13. SERVICE CONTRACTS
Subject to such requirements and restrictions as may be set forth in
the By-Laws:
(a) the Trustees, at any time and from time to time, may cause
the Trust (or any Series or Class thereof) to contract for exclusive or
nonexclusive management, advisory and/or administrative services with
one or more Investment Managers or other Persons, on such terms as the
Trustees may deem appropriate, including, without limitation, terms
authorizing any Investment Manager to determine (or to employ another
Investment Manager 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.
(b) The Trustees, at any time and from time to time, may cause
the Trust (or any Series or Class thereof) to contract with one or more
Persons, appointing any such Person exclusive or nonexclusive Principal
Underwriter or distributor for the Shares of one or more of the Series
(or Classes) or other securities to be issued by the Trust, on such
terms as the Trustees may deem appropriate.
(c) The Trustees, at any time and from time to time, may cause
the Trust (or any Series or Class thereof) to contract with one or more
Persons, appointing any such Person the custodian, transfer or similar
agent, shareholder servicing agent and/or dividend disbursement agent
for the Trust or for one or more of its Series (or Classes), on such
terms as the Trustees may deem appropriate (including, without
limitation, terms authorizing any such Person to employ subagents).
(d) The Trustees, at any time and from time to time, may cause
the Trust (or any Series or Class thereof) to contract with any other
Service Provider to provide such other services as the Trustees may
deem appropriate, on such terms as the Trustees may deem appropriate.
(e) The fact that: shall not affect the validity of any such
Trust Contract or disqualify any Trustee or Shareholder 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,
however, that approval of each such Trust Contract is obtained pursuant
to the applicable requirements of the 1940 Act.
(i) any of the Trustees or Shareholders or officers
of the Trust has a management, advisory or administration
contract, or Principal Underwriter's or distributor's
contract, or transfer or similar agent, shareholder servicing
agent, dividend disbursement agent or other type of service
contract with the Trust, or that
(ii) any of the Trustees or Shareholders or officers
of the Trust is or may become a shareholder, trustee,
director, officer, partner, member, employee, investment
manager or adviser, Principal Underwriter, distributor, or
affiliate or agent of or for any Person, or of or for any
parent or affiliate of any Person, with which a management,
advisory or administration contract, or Principal
Underwriter's or distributor's contract, or transfer or
similar agent, shareholder servicing agent, dividend
disbursement agent or other type of service contract may have
been or may hereafter be made by the Trust, or that any such
Person or any parent or affiliate thereof, is a Shareholder
or has an interest in the Trust, or that
(iii) any Person with which a management, advisory or
administration contract, or Principal Underwriter's or
distributor's contract, or transfer or similar agent,
shareholder servicing agent, dividend disbursement agent or
other type of service contract may have been or may hereafter
be made by the Trust (a "Trust Contract") also has a
management, advisory or administration contract, or Principal
Underwriter's or distributor's contract, or transfer or
similar agent, shareholder servicing agent, dividend
disbursement agent or other service contract with one or more
other Persons, or has other business or interests,
Subject to the foregoing proviso, nothing in this Declaration
of Trust shall be deemed to preclude (a) any one Person from entering
into more than one Trust Contract with the Trust or (b) any one Person
from being financially interested in or otherwise affiliated with more
than one Person with whom the Trust has entered into a Trust Contract.
ARTICLE VII.
COMPENSATION, LIMITATION OF LIABILITY AND
INDEMNIFICATION OF TRUSTEES AND OFFICERS
Section 1. COMPENSATION
The Trustees shall be entitled to compensation from the Trust for their
services as such, and the Trustees may from time to time fix such compensation
in such reasonable amount as they may deem appropriate.
Section 2. LIMITATION OF LIABILITY
Every note, bond, contract, instrument, certificate, Share or other
undertaking and every other act or thing whatsoever issued, executed, made or
done by the Trustees or officers or employees or (to the extent permitted by the
Trustees) Service Providers of the Trust or any of them on behalf of the Trust
or any Series or Class thereof shall conclusively be deemed to have been issued,
executed, made or done only in or with respect to such capacities or capacity,
and not in their or his or her individual capacities or capacity. In addition,
neither a Trustee nor an officer of the Trust shall be liable for any act or
omission or any conduct whatsoever in his or her capacity as Trustee or officer
(including, without limitation, errors of judgment or mistakes of fact or law),
provided that nothing contained herein shall protect any Trustee or officer
against any liability to the Trust or the Shareholders to which he or she
otherwise would be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee or officer. Accordingly, a Trustee or officer of the Trust,
when acting in such capacity (a) shall not personally be liable to any Person
(except as set forth in clause (b) immediately following) for any act, omission,
debt or obligation of the Trust or of such Trustee or officer and (b) shall be
liable to the Trust and the Shareholders only to the extent provided in the
preceding sentence. Without limiting the generality of the foregoing, but
subject in each case to clause (b) immediately above, (i) the exercise by the
Trustees or officers of the Trust of their powers and authority in good faith
shall be binding on the Trust, the Shareholders and every other interested
person; (ii) a Trustee shall not be responsible or liable for any act, omission,
debt or obligation of any officer, employee or Service Provider of the Trust, or
of any other Trustee; (iii) an officer shall not be responsible or liable for
any act, omission, debt or obligation of any Trustee, employee or Service
Provider of the Trust, or of any other officer; (iv) the Trustees and officers
may take advice of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust and their duties as Trustees or officers
hereunder, and shall not be liable for any act or omission in accordance with
such advice or for failing to follow such advice; and (v) in discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely upon
the books of account of the Trust and upon written reports made to the Trustees
by any officer, employee or Service Provider appointed by them, any independent
public accountant and (with respect to the subject matter of the contract
involved) any officer, partner, member or responsible employee or agent of any
other party to any contract entered into by the Trust or by the Trustees on
behalf of the Trust. The Trustees and officers shall not be required to give any
bond as such, nor any surety if a bond is required or obtained. The provisions
of this Declaration of Trust, to the extent they restrict the duties and
liabilities of the Trustees and officers otherwise existing at law or in equity,
are agreed by the Shareholders and all other Persons to replace such other
duties and liabilities of the Trustees and officers.
Every note, bond, contract, instrument, certificate, Share or other
undertaking issued, executed or made by the Trustees or any of them or by the
officers, employees or (to the extent permitted by the Trustees) Service
Providers of the Trust or any of them may recite that the same was issued,
executed or made by or on behalf of the Trust by them solely in such capacities
or capacity and not personally and that the obligations of such instrument are
not binding upon any of them personally but are binding only upon the assets and
property of the Trust or a particular Series thereof, and may contain such
further recitals as they or he or she may deem appropriate, but the omission
thereof shall not operate to bind any Trustee or any officer, employee or
Service Provider of the Trust personally.
Section 3. INDEMNIFICATION
Subject to the exceptions and limitations contained in this Section 3,
every person who is, or has been, a Trustee or officer of the Trust, or who
serves at the request of the Trust or at the request of a Trustee on behalf of
the Trust as a trustee, director, member, officer, employee or agent of another
organization in which the Trust has an interest as a shareholder, creditor or
otherwise (hereinafter referred to as a "Covered Person"), shall be indemnified
by the Trust to the fullest extent permitted by law against liability, and
against all expenses reasonably incurred or paid by him or her, in connection
with any claim, action, suit or proceeding in which he or she becomes involved
as a party or otherwise by virtue of his or her being or having been such a
Trustee, trustee, director, member, officer, employee or agent and against
amounts paid or incurred by him or her in settlement thereof.
No indemnification shall be provided hereunder to a Covered Person:
(a) for any liability to this Trust or the Shareholders
arising out of a final adjudication by the court or other body before
which the proceeding was brought that he or she engaged in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office;
(b) with respect to any matter as to which he or she shall
have been finally adjudicated by the court or other body before which
the proceeding was brought not to have acted in good faith in the
reasonable belief that his or her action was in the best interest of
the Trust; or
(c) in the event of a settlement or other disposition not
involving a final adjudication (as provided in paragraph (a) or (b)
immediately above) and resulting in a payment by a Covered Person,
unless there has been either a determination that such Covered 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 a reasonable determination, based on a review of the
readily available facts (as opposed to a full trial-type inquiry), that
he or she did not engage in such conduct, such determination being made
by:
(i) a vote of a majority of the Disinterested
Trustees acting on the matter (provided that a majority of
the Disinterested Trustees then in office act on the matter);
or
(ii) a written opinion of independent legal
counsel.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not exclude or
affect any other rights to which any Covered Person may now or hereafter be
entitled, shall be considered enforceable contract rights of Covered Persons,
shall continue as to a Person who has ceased to be a Covered Person (but only
with respect to the acts or omissions of such person occurring prior to the time
such person ceased to be a Covered Person) and shall inure to the benefit of the
heirs, executors and administrators of such a person. Nothing contained herein
shall affect any rights to indemnification to which Trust personnel other than
Covered Persons may be entitled by contract or otherwise under law. The Trustees
from time to time may provide for such indemnification as they deem appropriate
(but in no event more extensive than that provided in this Section 3), for
employees, agents and Service Providers of this Trust. For purposes of this
Section 3, this Trust shall include any successor in interest to this Trust.
Expenses in connection with preparation and presentation of a defense
to any claim, action, suit or proceeding subject to a claim for indemnification
under this Section 3 may be advanced by the Trust or applicable Series from time
to time prior to final disposition thereof upon receipt of an undertaking by or
on behalf of the recipient to repay such amount to the Trust or applicable
Series if it is ultimately determined that he or she is not entitled to
indemnification under this Section 3, provided that either:
(a) such undertaking is secured by a surety bond or some other
appropriate security supplied by the recipient (unless the Trustees
shall waive the requirement that such surety bond or security be
supplied by the recipient) or the Trust shall be insured against losses
arising out of any such advances; or
(b) a majority of the Disinterested Trustees acting on the
matter (provided that a majority of the Disinterested Trustees then in
office act on the matter) or independent legal counsel in a written
opinion shall determine, based on a review of the readily available
facts (as opposed to a full trial-type inquiry), that there is reason
to believe that the recipient ultimately will be found to be entitled
to indemnification under this Section 3.
For purposes of this Section 3, a "Disinterested Trustee" is a Trustee
(i) who is not an Interested Person of the Trust (including anyone who has been
exempted from being an Interested Person by any rule, regulation or order of the
Commission), and (ii) against whom none of such claims, actions, suits or other
proceedings or another claim, action, suit or proceeding on the same or similar
grounds is then or has been pending.
For purposes of this Section 3 and Section 4 immediately below, the
words "claim," "action," "suit" or "proceeding" shall apply to all claims,
actions, suits or proceedings (civil, criminal, administrative or other,
including appeals), actual or threatened and while in office or thereafter; and
the words "liability," "losses" and "expenses" shall include, without
limitation, attorneys' fees, costs, judgments, amounts paid in settlement,
fines, penalties and other liabilities.
Section 4. INSURANCE
The Trustees may to the fullest extent permitted by law purchase with
Trust assets insurance for liability and for all expenses reasonably incurred or
paid or expected to be paid by a Covered Person in connection with any claim,
action, suit or proceeding in which he or she becomes involved as a party or
otherwise by virtue of his or her being or having been a Person who falls within
the definition of Covered Person, whether or not the Trust would have the power
to indemnify him or her against such liability under the provisions of this
Article.
ARTICLE VIII.
AMENDMENT
Notwithstanding any other provision of this Declaration of Trust, the
Trustees, at any time and from time to time, by Resolution, without any need for
Shareholder authorization or approval, may amend this Declaration of Trust so as
to add to, delete, replace or otherwise modify any provision hereof (including,
without limitation, any provision (a) relating to the Shares (or any Series or
Class thereof) or (b) contained in any document incorporated herein by reference
("Incorporated Document") or in any document incorporated by reference into an
Incorporated Document); provided, however, that (i) the Trustees must obtain
Shareholder authorization or approval of any such amendment to the extent they
are required to do so by the 1940 Act; (ii) the Trustees must obtain the
authorization or approval of holders of not less than seventy-five percent (75%)
of the outstanding Shares, voting together without differentiation among the
separate Series or Classes, to adopt any amendment to this ARTICLE VIII; (iii)
the Trustees must obtain the authorization or approval of Shareholders of a
particular Series (or Class) to adopt any amendment which would adversely affect
to a material degree the rights, powers, privileges, preferences or duties of
the Shares of such Series (or Class), in the manner provided in ARTICLE V,
Section 1 hereof; (iv) to the extent voting rights are accorded to Shareholders
under the provisions of this Declaration of Trust to authorize or approve a
particular matter, the Trustees may not adopt any amendment to any such voting
right, or any amendment which would have the effect of altering or nullifying
such voting right, unless they first obtain the same authorization or approval
of such Shareholders as would be required to be obtained from them if such
Shareholders were voting on such matter; and (v) no amendment to ARTICLE VII
hereof shall limit the rights to indemnification or insurance provided herein
which arise prior to such amendment.
An amendment required to be authorized or approved by holders of
particular Shares in a particular manner shall not be effective with respect to
such Shares if not so approved by such holders in such manner.
Any amendment hereto shall be effective at the time specified by the
Trustees by Resolution (or upon the time specified in any requisite
authorization or approval of the Shareholders).
The Certificate of Trust of the Trust also may be amended in accordance
with the foregoing principles, and any such amendment shall be effective
immediately upon the filing of a certificate of amendment with the Office of the
Secretary of State of the State of Delaware or upon such future date as may be
stated therein. Any such certificate of amendment may be signed by any one
Trustee pursuant to authorization of the Trustees.
ARTICLE IX.
DISSOLUTION OF TRUST OR TERMINATION OF SERIES OR CLASSES; REORGANIZATION
Section 1. DISSOLUTION OF TRUST OR TERMINATION OF SERIES OR
CLASSES
Unless dissolved as provided herein, the Trust shall continue without
limitation of time. The Trust may be dissolved (a) at any time by approval of
the Trustees and the holders of at least 66 2/3% of the outstanding Shares of
each Series, voting separately by Series; (b) at any time by the Trustees, by
Resolution and written notice to the Shareholders; or (c) in accordance with the
provisions of ARTICLE IX, Section 2 hereof. Any Series or Class may be
terminated (a) at any time by approval of the Trustees and the vote of the
holders of at least 66 2/3% of the outstanding Shares of that Series or Class;
(b) at any time by the Trustees, by Resolution and written notice to the
Shareholders of that Series or Class; or (c) in accordance with the provisions
of ARTICLE IX, Section 2 hereof. At any time there are no Shares of a previously
authorized Series or Class outstanding, the Trustees, by Resolution, may abolish
that Series or Class and rescind the authorization thereof, such Resolution to
be effective as of the date specified therein, and to be incorporated by
reference herein upon adoption.
Upon the dissolution of the Trust (or the termination of any Series, as
the case may be), the Trustees shall proceed to cause the Trust (or Series) to
wind up its business and affairs. After paying or otherwise providing,
severally, for all liabilities, expenses, costs, charges and reserves with
respect to each Series (or the applicable Series, as the case may be), whether
due or accrued or anticipated, as may be determined by the Trustees, the Trust
shall, in accordance with such procedures as the Trustees may deem appropriate,
reduce the remaining assets held, severally, with respect to each Series (or the
applicable Series, as the case may be), to distributable form in cash or shares
or other securities, or any combination thereof, and distribute the proceeds
associated with each Series (or the applicable Series, as the case may be), to
the Shareholders of that Series, as a Series, ratably according to the number of
Shares of that Series held of record by such Shareholders on the Distribution
Record Date established by the Trustees in connection with the dissolution or
termination (giving due effect to the differences among the various Classes
within each such Series).
Upon completion of the distribution of all of the Trust Property, or
upon completion of the distribution to holders of Shares of a Series of all of
the assets associated with that Series, whether pursuant to this Section 1 or
ARTICLE IX, Section 2 hereof, the Trustees shall be discharged of any and all
further liabilities and duties hereunder with respect to the Trust or such
Series, as the case may be, and the right, title and interest of all parties
with respect to the Trust or such Series, as the case may be, shall be canceled
and discharged.
In the event of a dissolution of the Trust, following completion of
winding up of the Trust's business and affairs, the Trustees shall cause a
certificate of cancellation of the Trust's Certificate of Trust to be filed in
accordance with the Act, which certificate of cancellation may be signed by any
one Trustee pursuant to authorization of the Trustees.
Section 2. REORGANIZATION
The Trustees, by Resolution, may cause the Trust to sell, convey and
transfer all or substantially all of the assets of the Trust, or all or
substantially all of the assets associated with any one or more Series, to
another trust, partnership, limited liability company, association or
corporation organized under the laws of any State, or to one or more separate
series thereof, or to the Trust to be held as assets associated with one or more
other Series of the Trust, in exchange for cash, shares or other securities
(including, without limitation, in the case of a transfer to another Series of
the Trust, Shares of such other Series) with such transfer either (a) being made
subject to, or with the assumption by the transferee of, the liabilities
associated with each Series the assets of which are so transferred, or (b) not
being made subject to, or not with the assumption of, such liabilities;
provided, however, that, if required by the 1940 Act, no assets associated with
any particular Series shall be so sold, conveyed or transferred unless the terms
of such transaction shall first have been approved at a meeting called for that
purpose by the affirmative vote of a majority of the outstanding Shares of that
Series. Following such sale, conveyance and transfer, the Trustees shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities associated with and any other differences among the
various Series the assets associated with which have so been sold, conveyed and
transferred) ratably among the Shareholders of the Series the assets associated
with which have been so sold, conveyed and transferred (giving due effect to the
differences among the various Classes within each such Series); and if all of
the assets of the Trust have been so sold, conveyed and transferred the Trust
shall be dissolved.
The Trustees may cause the Trust, or any one or more Series, either as
the successor, survivor, or non-survivor, (a) to consolidate with one or more
other trusts, partnerships, limited liability companies, associations or
corporations organized under the laws of any State, or with one or more separate
series thereof, or with one or more other Series, thereby forming a new
consolidated trust, partnership, limited liability company, association,
corporation, series or Series under the laws of which any one of the constituent
entities is organized, or (b) to merge into one or more other trusts,
partnerships, limited liability companies, associations or corporations
organized under the laws of any State, or into one or more separate series
thereof, or into one or more other Series, or to have one or more of such
trusts, partnerships, limited liability companies, associations, corporations,
series or Series merged into it, any such consolidation or merger to be upon
such terms and conditions as are specified in an agreement and plan of
reorganization entered into by the Trust, or any one or more Series, as the case
may be, in connection therewith. The terms "merge" or "merger" as used herein
also shall include the purchase or acquisition, other than in the ordinary
course of business, of any assets or business of any other trust, partnership,
limited liability company, association or corporation which is an investment
company organized under the laws of any State, or of any series thereof, or of
any Series. Any such consolidation or merger shall require a Resolution of the
Trustees and, if required by the 1940 Act, the affirmative vote of a majority of
the outstanding Shares of each Series affected thereby, at a meeting duly called
for that purpose.
In accordance with Section 3815(F) of the Act, an agreement of merger
or consolidation approved in accordance with this Section 2 may effect any
amendment to this Declaration of Trust or the By-Laws or effect the adoption of
a new declaration of trust or by-laws of this Trust if this Trust is the
surviving or resulting business trust. A certificate of merger or consolidation
of this Trust shall be signed by a majority of the Trustees.
ARTICLE X.
MISCELLANEOUS
Section 1. FILING OF COPIES; REFERENCES; HEADINGS; SINGULAR AND
PLURAL; COUNTERPARTS
The original or a copy of this Declaration of Trust, each amendment or
restatement hereof, each document incorporated herein by reference and each
certificate filed by or on behalf of this Trust with the Office of the Secretary
of State of the State of Delaware pursuant to the Act shall be kept at the
principal executive office of this Trust where it may be inspected by any
Shareholder at any reasonable time during usual office hours. The inspection
shall include the right to make copies and extracts, at the sole cost and
expense of the Shareholder making the inspection. Anyone dealing with this Trust
may rely on a certificate by a Trustee or officer of this Trust as to whether or
not any such amendments or restatements have been made and as to any matter in
connection with this Trust hereunder; and, with the same effect as if it were
the original, may rely on a copy certified by a Trustee or officer of this Trust
to be a copy of this Declaration of Trust or of any such amendment or
restatement.
In this Declaration of Trust and in any such amendment or restatement
hereof, references to this Declaration of Trust, and all expressions like
"hereby," "herein," "hereof," "hereto" and "hereunder," shall be deemed to refer
to this Declaration of Trust as amended or restated or affected by any such
amendment or restatement.
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 Declaration of Trust.
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 Declaration of Trust may be executed in any number of
counterparts, each of which shall be deemed an original.
Section 2. APPLICABLE LAW; CONSTRUCTION
This Declaration of Trust is executed and delivered by all of the
Trustees with reference to the Act and the laws of the State of Delaware, and
this Trust and all provisions of this Declaration of Trust (which shall be the
governing instrument of this Trust), and the rights, duties and obligations of
the Trustees and Shareholders hereunder, are to be governed by and construed and
administered in accordance with the Act and the internal substantive laws of
said State without regard to principles of conflict of laws (unless and to the
extent preempted by the 1940 Act or other applicable Federal securities laws);
provided, however, that there shall not be applicable to this Trust, the
Trustees or this Declaration of Trust (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 Act) pertaining to trusts which
are inconsistent with the powers and authority and limitations of liability of
the Trustees set forth or referenced herein or which 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 court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable 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 of responsibilities or limitations on the acts or powers of
trustees. This Trust shall be of the type commonly called a "business trust,"
and without limiting the provisions hereof, this Trust specifically reserves the
right to exercise any of the powers or privileges afforded to trusts and to take
actions that may be taken by trusts under the Act, and the absence of a specific
reference herein to any such power, privilege or action shall not imply that
this Trust may not exercise such powers or privileges or take such actions.
In construing the meaning or application of the Securities Act of 1933,
as amended, or any rule or regulation of the Commission thereunder (the"1933
Act"), the Securities Exchange Act of 1934, as amended, or any rule or
regulation of the Commission thereunder (the "1934 Act") or the 1940 Act, the
Trustees may consider the effect of any applicable order or interpretive release
issued by the Commission, or any applicable "no action" or interpretive position
issued by the staff of the Commission, that modifies or interprets any of the
foregoing.
If any provision of this Declaration of Trust appears to the Trustees
to be ambiguous or inconsistent with any other provision hereof, the Trustees
may construe such provision in such manner as they reasonably may determine in
good faith, and such construction shall be conclusive and binding as to the
meaning to be given to such provision.
Section 3. RECORD DATES FOR OTHER PURPOSES
The Trustees may establish such procedures for determining record dates
for purposes other than those set forth in ARTICLE IV, Section 2 hereof and
ARTICLE V, Section 5 hereof as they may deem appropriate. In lieu of
establishing record dates in connection with such other purposes, the Trustees
may close the register or transfer books for one or more Series (or Classes),
for such periods as they may deem appropriate, preceding a date that serves the
same purpose as a record date.
Section 4. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS
(a) The provisions of this Declaration of Trust are severable,
and if the Trustees shall determine, with the advice of counsel, that
any such provision is in conflict with (i) the 1933 Act, the 1934 Act
or the 1940 Act, or any rule, regulation or order of the Commission
under any of the foregoing, (ii) the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended, or (iii)
the Act or other applicable laws, rules, regulations or orders, whether
generally or in a particular application, the conflicting provision or
such particular application thereof, as the case may be, shall not be
deemed to constitute a part of this Declaration of Trust for so long as
such conflict exists; provided, however, that such determination shall
not affect any of the remaining provisions of this Declaration of Trust
or any lawful application of any provision, or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision or the application of 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 or application in such jurisdiction and shall not in any
manner affect such provision or application in any other jurisdiction
or any other provision of this Declaration of Trust in any
jurisdiction.
IN WITNESS WHEREOF, the Trustee named below does hereby make and enter into this
Declaration of Trust as of the 25th day of March, 2000.
/s/ James P. Cullen
- -----------------
James P. Cullen
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS:
645 FIFTH AVENUE, NEW YORK, NY 10022
- -------------------------------------
BY-LAWS
OF
CULLEN FUNDS TRUST
A DELAWARE BUSINESS TRUST
(As of March 25, 2000)
TABLE OF CONTENTS
BY-LAWS
CULLEN FUNDS TRUST
<TABLE>
<S> <C>
ARTICLE I...........................................................................................................3
OFFICES..........................................................................................................3
Section 1. Principal Office...................................................................................3
Section 2. Registered Delaware Office.........................................................................3
Section 3. Other Offices......................................................................................3
ARTICLE II..........................................................................................................4
MEETINGS OF SHAREHOLDERS.........................................................................................4
Section 1. Place of Meetings..................................................................................4
Section 2. Call of Meeting....................................................................................4
Section 3. Notice of Shareholders Meeting.....................................................................4
Section 4. Manner of Giving Notice; Affidavit of Notice.......................................................4
Section 5. Adjourned Meeting; Notice..........................................................................5
Section 6. Voting.............................................................................................5
Section 7. Waiver of Notice by Consent of Absent Shareholders.................................................6
Section 8. Shareholder Action by Written Consent Without a Meeting............................................6
Section 9. Record Date for Shareholder Notice, Voting and Giving Consents.....................................6
Section 10. Proxies...........................................................................................7
Section 11. Inspectors of Election............................................................................7
ARTICLE III.........................................................................................................8
TRUSTEES.........................................................................................................8
Section 1. Powers.............................................................................................8
Section 2. Number of Trustees.................................................................................8
Section 3. Vacancies..........................................................................................8
Section 4. Place of Meetings..................................................................................9
Section 5. Regular Meetings...................................................................................9
Section 6. Special Meetings...................................................................................9
Section 7. Quorum............................................................................................10
Section 8. Waiver of Notice..................................................................................10
Section 9. Adjournment.......................................................................................10
Section 10. Notice of Adjournment............................................................................10
Section 11. Action Without a Meeting.........................................................................10
Section 12. Fees and Compensation of Trustees................................................................11
Section 13. Delegation of Power to Other Trustees...........................................................11
ARTICLE IV.........................................................................................................11
COMMITTEES......................................................................................................11
Section 1. Committees........................................................................................11
Section 2. Meetings and Actions of Committees................................................................12
ARTICLE V..........................................................................................................12
OFFICERS........................................................................................................12
Section 1. Officers..........................................................................................12
Section 2. Election of Officers..............................................................................12
Section 3. Subordinate Officers..............................................................................13
Section 4. Removal and Resignation of Officers...............................................................13
Section 5. Vacancies in Offices..............................................................................13
Section 6. Chairman of the Trustees..........................................................................13
Section 7. President.........................................................................................13
Section 8. Vice Presidents...................................................................................15
Section 9. Secretary.........................................................................................15
Section 10. Treasurer........................................................................................15
Section 11. Controller.......................................................................................15
ARTICLE VI.........................................................................................................16
RECORDS AND REPORTS.............................................................................................16
Section 1. Maintenance and Inspection of Shares Register.....................................................16
Section 2. Maintenance and Inspection of Books and Records...................................................16
Section 3. Inspection by Trustees............................................................................17
Section 4. Financial Statements..............................................................................17
ARTICLE VII........................................................................................................17
GENERAL MATTERS.................................................................................................17
Section 1. Checks, Drafts, Evidences of Indebtedness.........................................................17
Section 2. Contracts and Instruments; How Executed...........................................................17
Section 3. Certificates for Shares...........................................................................18
Section 4. Lost Certificates.................................................................................18
Section 5. Transfer of Shares................................................................................18
Section 6. Representation of Shares of Other Entities Held by Trust..........................................19
Section 7. Fiscal Year.......................................................................................19
ARTICLE VIII.......................................................................................................19
AMENDMENTS......................................................................................................19
Section 1. Amendment.........................................................................................19
Section 2. Incorporation by Reference Into Declaration of Trust..............................................19
</TABLE>
CULLEN FUNDS TRUST
A Delaware Business Trust
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE.
The trustees (the "Trustees") of Cullen Funds Trust, a Delaware
business trust (the "Trust"), shall establish, and from time to time may change
the location of, the principal executive office of the Trust at any place within
or without the State of Delaware.
SECTION 2. REGISTERED DELAWARE OFFICE.
The Trustees shall establish, and from time to time may change the
location of, a registered office of the Trust in the State of Delaware and shall
appoint from time to time, as the Trust's registered agent for service of
process in the State of Delaware, an individual who is a resident of the State
of Delaware or a Delaware corporation or a corporation authorized to transact
business in the State of Delaware; in each case the business office of such
registered agent for service of process shall be identical to the registered
office of the Trust in the State of Delaware.
SECTION 3. OTHER OFFICES.
The Trustees may at any time and from time to time establish one or
more branch or subordinate offices at any place or places, in accordance with
the terms of the Agreement and Declaration of Trust of the Trust (the
"Declaration of Trust").
SECTION 4. CERTIFICATES OF AMENDMENT.
The Trustees shall cause to be filed such certificate or certificates
as may be required under the Delaware Business Trust Act (the "Act") to
effectuate the foregoing.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS.
Meetings of shareholders may be held at any place designated by the
Trustees, within or without the State of Delaware. In the absence of any such
designation, meetings of shareholders shall be held at the principal executive
office of the Trust.
SECTION 2. CALL OF MEETING.
A meeting of the shareholders may be called at any time by the
Trustees, the Chairman of the Trustees (if a person is so appointed in
accordance with Article VI, Section 8 of the Declaration of Trust) (the
"Chairman") or the President of the Trust.
SECTION 3. NOTICE OF SHAREHOLDERS' MEETING.
All notices of meetings of shareholders shall be given or caused to be
given in accordance with Section 4 of this Article II not less than fifteen (15)
nor more than ninety (90) days prior to the date of the meeting. The notice
shall specify (i) the place, date and hour of the meeting and (ii) the general
nature of the business to be transacted at the meeting. If action is proposed to
be taken at any meeting for authorization or approval of any matter requiring
shareholder authorization or approval under (i) the 1940 Act, (ii) Article VIII
of the Declaration of Trust or (iii) Article IX of the Declaration of Trust, the
notice of such meeting also shall state the general nature of the proposal. If a
meeting is to be held for the purpose of electing or removing one or more
Trustees, the notice of such meeting also shall state the name or names of the
person or persons proposed to be elected or removed.
SECTION 4. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice of any meeting of shareholders shall be given (a) personally
(whether orally or in writing), or (b) in writing by way of first-class mail or
any other reputable delivery service (including, without limitation, any
reputable telegraphic or courier service), charges prepaid, addressed to the
shareholder at the address of that shareholder appearing on the books of the
Trust or of a transfer or similar agent of the Trust or designated by the
shareholder to the Trust for the purpose of giving notice to such shareholder in
connection with the calling of meetings of the shareholders of the Trust. If no
such address appears on such books and is not so designated, notice shall be
deemed to have been given if (a) sent to that shareholder in writing by way of
first-class mail or other reputable delivery service, charges prepaid, addressed
to the Trust's principal executive office or (b) published at least once in a
newspaper of general circulation in the county where that office is located.
Notice shall be deemed to have been given at the time when given personally or
deposited in the mail or delivered to the delivery service.
If any notice addressed to a shareholder at the address of that
shareholder appearing on the books of the Trust or of a transfer or similar
agent of the Trust or designated by the shareholder to the Trust for the purpose
of giving notice to such shareholder in connection with the calling of meetings
of the shareholders of the Trust is returned to the Trust by the United States
Postal Service or the delivery service to whom it was delivered by the Trust,
marked to indicate that such service is unable to deliver the notice to the
shareholder at that address, all future notices shall be deemed to have been
duly given without further action on the part of the Trust if such notices shall
be available for inspection by the shareholder on written demand of the
shareholder at the principal executive office of the Trust for a period of one
year from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
shareholder's meeting shall be executed by the Secretary, Assistant Secretary or
any transfer or similar agent of the Trust giving the notice and shall be filed
with the Secretary of the Trust and be maintained in the Trust's records.
SECTION 5. ADJOURNED MEETING; NOTICE.
Any meeting of shareholders may be adjourned from time to time to
another date and time by a majority of the votes properly cast in person or by
proxy upon the question of adjournment, whether or not a quorum is present,
without the necessity for giving further notice, unless a new record date of the
adjourned meeting is fixed or unless the adjournment is for more than sixty (60)
days after the date set for the original meeting (in which case the Trustees
shall fix a new record date). Any notice required to be given shall be given to
each shareholder of record entitled to vote at the adjourned meeting in
accordance with the provisions of Sections 3 and 4 of this Article II. At any
adjourned meeting, the Trust may transact any business which might have been
transacted at the original meeting.
SECTION 6. VOTING.
The shareholders entitled to vote at any meeting of shareholders shall
be determined in accordance with the provisions of the Declaration of Trust. The
shareholders' vote may be by voice or by ballot; provided, however, that any
vote for the election or removal of one or more Trustees must be by ballot if
demanded by any shareholder before the voting has begun. On any matter other
than elections or removals of Trustees, any holder of shares may vote part of
his or her shares in favor of the proposal and refrain from voting the remaining
shares or vote them against the proposal, but if the holder fails to specify the
number of shares which the holder is voting affirmatively, it conclusively will
be presumed that such holder's affirmative vote is with respect to the total
number of shares that such holder is entitled to vote on such proposal.
SECTION 7. WAIVER OF NOTICE BY CONSENT OF ABSENT SHAREHOLDERS.
The transactions at a meeting of shareholders, however called and
noticed and wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice if a quorum be present either in person or
proxy and if either before or after the meeting, each person entitled to vote
who was not present in person or by proxy signs a written waiver of notice of
the meeting, a consent to the holding of the meeting or an approval of the
minutes of the meeting. The waiver of notice or consent with respect to a
meeting need not specify either the business that was, or is to be, transacted
at, or the purpose of, such meeting. All such waivers, consents and approvals
may be executed in one or more counterparts and shall be filed with the records
of the Trust or the minutes of the meeting.
Attendance by a person at a meeting also shall constitute a waiver of
notice of that meeting, except when the person objects at the beginning of the
meeting to the transaction of any business because the meeting was not duly
called and noticed and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included but required to
be included in the notice of the meeting if that objection is expressly made at
the beginning of the meeting.
SECTION 8. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any action requiring authorization or approval of shareholders may be
taken without a meeting of such shareholders and without prior notice if holders
of at least 66 2/3% of the shares entitled to be voted on the matter consent to
the action in writing and such written consent or consents are filed with the
minutes of the meetings of shareholders (except where a larger percentage is
required by the Investment Company Act of 1940, as amended (the "1940 Act"), or
by any express provision of the Declaration of Trust). Such consents may be
executed in one or more counterparts. Any shareholder giving a written consent
(or such shareholder's proxy) may revoke the consent by a writing received by
the Secretary of the Trust before written consents by or on behalf of holders
holding the number of shares required to authorize or approve the proposed
action have been filed with the Secretary of the Trust.
If the consents of all shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary of the Trust shall give
prompt notice of the action authorized or approved by the shareholders without a
meeting, such notice to be given at least ten (10) days before the consummation
of the action so authorized or approved.
SECTION 9. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING AND GIVING
CONSENTS.
If the Trustees do not fix a record date or close the register or
transfer books of the Trust in accordance with the provisions of Article V,
Section 5 of the Declaration of Trust:
(a) The record date for determining shareholders entitled to
notice of and to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which
notice is given or if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held.
(b) The record date for determining shareholders entitled to
give consent to an action in writing without a meeting, (i) when the
Trustees are not required to approve such action, shall be the first
day on which the Trust receives a written consent to such action, or
(ii) when the Trustees are required to approve such action, shall be
the close of business on the day on which the Trustees approve such
action, or the close of business on such subsequent day as the Trustees
may fix in connection with taking such action.
SECTION 10. PROXIES.
Every person entitled to vote on any matter shall have the right to do
so either in person or by one or more agents authorized by a written proxy
signed by the person and filed with the Secretary of the Trust. A proxy shall be
deemed signed if the shareholder's name is placed on the proxy (whether by
manual signature, typewriting, telegraphic transmission or otherwise) by the
shareholder or the shareholder's attorney-in-fact. A valid proxy which does not
state that it is irrevocable shall continue in full force and effect unless (i)
revoked by the person executing it before the vote pursuant to that proxy by a
writing delivered to the Trust stating that the proxy is revoked or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by, the person executing that proxy; or (ii) written notice of the death or
incapacity of the maker of that proxy is received by the Trust before the vote
pursuant to that proxy; provided, however, that no proxy shall be valid after
the expiration of eleven (11) months from the date of the proxy unless otherwise
provided in the proxy.
SECTION 11. INSPECTORS OF ELECTION.
Before any meeting of shareholders, the Trustees may appoint any
persons other than nominees for office to act as inspectors of election at the
meeting or its adjournment. If no inspectors of election are so appointed, the
chairman of the meeting may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election at the meeting. The
number of inspectors shall be either one (1) or three (3). If inspectors are
appointed at a meeting on the request of one or more shareholders or their
proxies, the holders of a majority of shares or their proxies present at the
meeting shall determine whether one (1) or three (3) inspectors are to be
appointed. If any person appointed as inspector fails to appear or fails or
refuses to act, the chairman of the meeting may, and on the request of any
shareholder or a shareholder's proxy shall, appoint a person to fill the
vacancy.
The inspectors shall:
(a) Determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the
existence of a quorum and the authenticity, validity and effect of
proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in
any way arising in connection with the right to vote;
(d) Count and tabulate all votes, ballots or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
ARTICLE III
TRUSTEES
SECTION 1. POWERS.
Subject only to such restrictions as may be set forth in the
Declaration of Trust, the 1940 Act and other applicable law, the Trustees shall
have exclusive control over the property of the Trust and over the management of
the business and affairs of the Trust.
SECTION 2. NUMBER OF TRUSTEES.
The exact number of Trustees within the limits specified in the
Declaration of Trust shall be fixed from time to time by written consents
signed, or a resolution approved at a duly constituted meeting of the Trustees,
by a majority of the Trustees then in office; provided, however, that the
initial number of Trustees shall be five (5).
SECTION 3. VACANCIES.
Article VI, Section 5 of the Declaration of Trust shall govern the
filling of vacancies.
Notwithstanding the above, whenever and for so long as the Trust or any
series or class thereof is a participant in or otherwise has in effect a plan
under which the Trust or such series or class may be deemed to bear expenses of
distributing its shares as that practice is described in Rule 12b-1 under the
1940 Act, then the selection and nomination of the Trustees who are not
interested persons of the Trust (as that term is defined in the 1940 Act) shall
be, and is, committed to the discretion of the persons who are not interested
persons of the Trust.
SECTION 4. PLACE OF MEETINGS.
Meetings of the Trustees may be held at any place designated by the
Trustees or by the Chairman (if there be a person holding such office), within
or without the State of Delaware. In the absence of any such designation,
meetings of the Trustees shall be held at the principal executive office of the
Trust.
SECTION 5. REGULAR MEETINGS.
Regular meetings of the Trustees shall be held without call or notice
on such dates and at such times as shall from time to time be fixed by the
Trustees or by the Chairman (if there be a person holding such office).
SECTION 6. SPECIAL MEETINGS.
Special meetings of the Trustees for any purpose or purposes may be
called at any time by any two (2) Trustees, the Chairman (if there be a person
holding such office) or the President.
Notice of the place, date and hour of any special meeting shall be
caused to be delivered to each Trustee by the party or parties calling the same,
either (a) personally (whether orally or in writing); (b) by telephone or
facsimile to such telephone or facsimile number as is shown for that Trustee on
the records of the Trust; or (c) in writing by way of first class mail or other
reputable delivery service (including, without limitation, reputable telegraphic
or courier service), charges prepaid, addressed to that Trustee at his or her
address as it is shown on the records of the Trust. In case the notice is given
by way of mail, it shall be deposited in the United States mail at least seven
(7) calendar days before the time of the holding of the meeting. In case the
notice is given personally or by telephone or facsimile, it shall be given at
least forty-eight (48) hours before the time of the holding of the meeting. In
case the notice is given by way of a delivery service, it shall be delivered to
such service at such time as reasonably will enable such service to make
delivery to the Trustee at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the Trustee or to a person who the person giving the
notice reasonably believes will promptly communicate it to the Trustee. The
notice need not specify the purpose or place of the meeting if the meeting is to
be held at the principal executive office of the Trust.
SECTION 7. QUORUM.
A majority of the Trustees then in office shall constitute a quorum for
the transaction of business, except to adjourn as provided in Section 9 of this
Article III.
SECTION 8. WAIVER OF NOTICE.
Notice of any meeting need not be given to any Trustee who either
before or after the meeting signs a written waiver of notice of the meeting, a
consent to the holding of the meeting or an approval of the minutes. The waiver
of notice or consent with respect to a meeting need not specify either the
business that was, or is to be, transacted at, or the purpose of, such meeting.
All such waivers, consents and approvals may be executed in one or more
counterparts and shall be filed with the records of the Trust or the minutes of
the meeting. Attendance by a Trustee at a meeting also shall constitute a waiver
of notice of that meeting, except when the Trustee objects at the beginning of
the meeting to the transaction of any business because the meeting was not duly
called and noticed (if such call and notice is required by these By-Laws) and
except that attendance at a meeting is not a waiver of any right to object to
the consideration of matters not included but required to be included in the
notice of the meeting (if such notice is required to be given) if that objection
is expressly made at the beginning of the meeting.
SECTION 9. ADJOURNMENT.
A majority of the Trustees present, whether or not constituting a
quorum, may adjourn any meeting to another place and time.
SECTION 10. NOTICE OF ADJOURNMENT.
Notice of the place and time of holding an adjourned meeting need not
be given unless the meeting is adjourned for more than forty-eight (48) hours,
in which case notice of the place and time shall be given before the time of the
adjourned meeting in the manner specified in Section 6 of this Article III to
the Trustees who were present at the time of the adjournment.
SECTION 11. ACTION WITHOUT A MEETING.
Except as otherwise required by the 1940 Act or the Declaration of
Trust, any action required or permitted to be taken by the Trustees may be taken
without a meeting if a majority of the Trustees then in office shall consent in
writing to that action. Such written consent or consents may be executed in one
or more counterparts and shall be filed with the minutes of the meetings of
Trustees.
SECTION 12. FEES AND COMPENSATION OF TRUSTEES.
Trustees and members of committees may receive such compensation, if
any, for their services and such reimbursement of expenses as may be fixed or
determined by the Trustees. This Section 12 shall not be construed to preclude
any Trustee from serving the Trust in any other capacity as an officer, agent,
employee, or otherwise and receiving compensation for those services.
SECTION 13. DELEGATION OF POWER TO OTHER TRUSTEES.
To the extent not inconsistent with the requirements of the 1940 Act,
any Trustee, by power of attorney, may delegate his or her power for a period
not exceeding six (6) months at any one time to any other Trustee or Trustees;
provided, however, that in no case shall fewer than two (2) Trustees personally
exercise the powers granted to the Trustees except as otherwise expressly
provided herein or by Resolution (as defined in the Declaration of Trust).
Except where applicable law may require a Trustee to be present in person, a
Trustee represented by another Trustee pursuant to such power of attorney shall
be deemed to be present for purposes of establishing a quorum and satisfying the
required vote of Trustees.
ARTICLE IV
COMMITTEES
SECTION 1. COMMITTEES.
The Trustees may designate one or more committees, each consisting of
two (2) or more Trustees or other persons, to serve at the pleasure of the
Trustees. The Trustees may designate one or more Trustees or other persons as
alternate members of any committee who may replace any absent member at any
meeting of the committee. Any committee, to the extent provided by the Trustees,
shall have the powers and authority of the Trustees, except with respect to:
(a) the approval of any action which under the 1940 Act or the
Declaration of Trust requires shareholder authorization or approval; or
requires approval by Resolution (as defined in the Declaration of
Trust);
(b) the filling of vacancies in the number of Trustees or
in any committee;
(c) the fixing of compensation of the Trustees or other
persons for serving as Trustees or on any committee;
(d) the amendment or repeal of the Declaration of Trust
or the By-Laws;
(e) the amendment or repeal of any action by the
Trustees, unless such action provides by its express terms that it is
so amendable or repealable;
(f) a distribution to the shareholders of the Trust,
except at a rate or in a periodic amount or within a designated range
determined by the Trustees;
(g) the appointment of any other committee of the
Trustees or the members of those committees; or
(h) the removal of one or more Trustees.
SECTION 2. MEETINGS AND ACTIONS OF COMMITTEES.
Meetings and actions of committees shall be governed by and held and
taken in accordance with the provisions of Article III of these By-Laws, with
such changes in the context thereof as are necessary to substitute the committee
and its members for the Trustees, except that the place and time of regular
meetings of committees may be determined either by the Trustees or by resolution
of the committee. Special meetings of committees may be called by the Trustees.
Alternate members shall be given notice of all meetings of committees of which
they are alternate members and shall have the right to attend all such meetings.
The Trustees may adopt rules for the government of any committee not
inconsistent with the provisions of these By-Laws.
ARTICLE V
OFFICERS
SECTION 1. OFFICERS.
The officers of the Trust shall be a President, a Secretary, a
Treasurer and a Controller. The Trust also may have, at the discretion of the
Trustees, a Chairman, one or more Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, one or more Assistant Controllers
and such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article V. Any number of offices may be held by the same
person.
SECTION 2. ELECTION OF OFFICERS.
The officers of the Trust, except such officers as may be appointed in
accordance with the provisions of Section 3 or Section 5 of this Article V,
shall be chosen by the Trustees, and each shall serve at the pleasure of the
Trustees, subject to the rights, if any, of an officer under any contract of
employment.
SECTION 3. SUBORDINATE OFFICERS.
The Trustees may appoint and may empower the Chairman (if there be a
person holding such office) or the President to appoint such other officers as
the business of the Trust may require, each of whom shall hold office for such
period, have such powers and authority and perform such duties as the Trustees
may from time to time determine.
SECTION 4. REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by the
Trustees at any regular or special meeting of the Trustees, by the Chairman (if
there be a person holding such office), by the President or by such other
officer upon whom such power of removal may be conferred by the Trustees.
Any officer may resign at any time by giving written notice to the
Trust. Any resignation shall take effect at the date of the receipt of that
notice or at any later time specified in that notice; and unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Trust under any contract to which the officer is a party.
SECTION 5. VACANCIES IN OFFICES.
A vacancy in any office because of death, physical or mental
incapacity, resignation, removal or other cause shall be filled in the manner
prescribed in these By-Laws for regular appointment to that office. The Chairman
(if there be a person holding such office) or the President may make temporary
appointments to a vacant office pending action by the Trustees.
SECTION 6. CHAIRMAN OF THE TRUSTEES.
The Chairman (if there be a person holding such office) shall if
reasonably feasible preside at meetings of the Trustees.
SECTION 7. PRESIDENT.
Subject to such supervisory powers, if any, as may be given by the
Trustees to the Chairman (if there be a person holding such office), the
President shall be the chief operating officer of the Trust and shall, subject
to the control of the Trustees and the Chairman (if there be a person holding
such office), have general supervision, direction and control of the business
and affairs and the officers of the Trust. The President shall preside at all
meetings of the shareholders and, in the absence of the Chairman (if there be a
person holding such office), at all meetings of the Trustees. The President
shall have the general powers and duties of management usually vested in the
office of president of a corporation and shall have such other powers and
authority and perform such other duties as may be prescribed by these By-Laws or
as the Trustees or the Chairman (if there be a person holding such office) may
from time to time determine.
SECTION 8. VICE PRESIDENTS.
In the absence or disability of the President, in order of their rank
as fixed by the Trustees, or if not ranked, the Executive Vice President (who
shall be considered first ranked) and such other Vice Presidents as shall be
designated by the Trustees, shall perform all the duties of the President and
when so acting shall have all powers of and be subject to all the restrictions
upon the President. The Vice Presidents shall have such other powers and
authority and perform such other duties as may be prescribed by these By-Laws or
as the Trustees, the Chairman (if there be a person holding such office) or the
President may from time to time determine.
SECTION 9. SECRETARY.
The Secretary shall keep or cause to be kept at the principal executive
office of the Trust or such other place as the Trustees may direct a book of
minutes of all meetings and actions of Trustees, committees of Trustees and
shareholders with the time and place of holding, whether regular or special, and
if special, how authorized, the notice given, the names of those present at
Trustees' meetings or committee meetings, the number of shares present or
represented at shareholders' meetings, and the proceedings.
The Secretary shall give or cause to be given notice of all meetings of
the shareholders and of the Trustees required to be given by the Declaration of
Trust or these By-Laws or by applicable law and shall have such other powers and
authority and perform such other duties as may be prescribed by these By-Laws or
as the Trustees, the Chairman (if there be a person holding such office) or the
President may from time to time determine.
SECTION 10. TREASURER.
The Treasurer shall be the chief financial officer of the Trust. The
Treasurer shall deposit all monies and other valuables in the name and to the
credit of the Trust with such depositaries as may be designated by the Trustees.
The Treasurer shall disburse the funds of the Trust as may be ordered by the
Trustees, shall render to the Chairman (if there be a person holding such
office), the President and Trustees, whenever they request it, an account of all
of the Treasurer's transactions as chief financial officer and shall have such
other powers and authority and perform such other duties as may be prescribed by
these By-Laws or as the Trustees, the Chairman (if there be a person holding
such office) or the President may from time to time determine.
SECTION 11. CONTROLLER.
The Controller shall be the chief accounting officer of the Trust and
shall keep and maintain or cause to be kept and maintained adequate and correct
books and records of accounts of the properties and business transactions of the
Trust, including accounts of its assets, liabilities, receipts, disbursements,
gains, losses, capital, retained earnings and shares. The Controller shall
render to the Chairman (if there be a person holding such office), the President
and Trustees, whenever they request it, an account of the financial condition of
the Trust and shall have such other powers and authority and perform such other
duties as may be prescribed by these By-Laws or as the Trustees, the Chairman
(if there be a person holding such office) or the President may from time to
time determine.
ARTICLE VI
RECORDS AND REPORTS
SECTION 1. MAINTENANCE AND INSPECTION OF SHARES REGISTER.
A register or registers shall be kept at the principal executive office
of the Trust or at the offices of one or more transfer or similar agents of the
Trust which, together, shall contain the names and addresses of the shareholders
of each series, the number of shares of that series (or any class or classes
thereof) held by them respectively and a record of all transfers thereof. As to
shares for which no certificate has been issued, the shareholders listed on any
such register shall be entitled to receive dividends or other distributions or
otherwise to exercise or enjoy the rights of shareholders. No shareholder shall
be entitled to receive payment of any dividend or other distribution, nor to
have notice given to him or her as herein provided, until he or she has given
his or her address to the relevant transfer or similar agent or such officer or
other agent of the Trust as shall keep the relevant register, for entry thereon.
SECTION 2. MAINTENANCE AND INSPECTION OF BOOKS AND RECORDS.
The accounting books and records and minutes of proceedings of
shareholders and the Trustees and any committee or committees of the Trustees
shall be kept at such place or places designated by the Trustees or in the
absence of such designation, at the principal executive office of the Trust. The
minutes shall be kept in written form and the accounting books and records shall
be kept either in written form or in any other form capable of being converted
into written form. Subject to the provisions of the Declaration of Trust
(including, without limitation, the provisions of Article III, Section 19(b)
thereof), the minutes and accounting books and records shall be open to
inspection upon the written demand under oath of any shareholder or holder of a
voting trust certificate at any reasonable time during usual business hours for
any purpose reasonably related to the holder's interest as a shareholder or as
the holder of a voting trust certificate. The inspection shall include the right
to copy and make extracts, at the sole cost and expense of the party making the
demand.
SECTION 3. INSPECTION BY TRUSTEES.
Every Trustee shall have the absolute right at any reasonable time to
inspect all books, records, and documents of every kind and the physical
properties of the Trust. This inspection by a Trustee may be made in person or
by an agent or attorney and the right of inspection includes the right to copy
and make extracts, at the sole cost and expense of the Trust.
SECTION 4. FINANCIAL STATEMENTS.
Subject to the provisions of the Declaration of Trust (including,
without limitation, the provisions of Article III, Section 19(b) thereof), a
copy of any financial statements and any income statement of the Trust for each
quarterly period of each fiscal year and accompanying balance sheet of the Trust
as of the end of each such period that has been prepared by the Trust shall be
kept on file at the principal executive office of the Trust for at least twelve
(12) months and each such statement shall be exhibited at all reasonable times
during usual business hours to any shareholder demanding an examination of any
such statement, or a copy shall be mailed to any such shareholder at the sole
cost and expense of the Trust.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of any independent
accountants engaged by the Trust or the certificate of an authorized officer of
the Trust that the financial statements were prepared without audit from the
books and records of the Trust.
ARTICLE VII
GENERAL MATTERS
SECTION 1. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS.
All checks, drafts or other orders for payment of money, and all notes
or other evidences of indebtedness, issued in the name of or payable to the
Trust shall be signed or endorsed in such manner and by such person or persons
as shall be designated from time to time by the Trustees.
SECTION 2. CONTRACTS AND INSTRUMENTS; HOW EXECUTED.
The Trustees, except as otherwise provided in these By-Laws, may
authorize one or more officers, agents or emp1oyees of the Trust to enter into
any contract or execute any instrument in the name of and on behalf of the Trust
and this authority may be general or confined to specific instances; and unless
so authorized or ratified by the Trustees or within the agency power of an
officer, no officer, agent or employee of the Trust shall have any power or
authority to bind the Trust by any contract or engagement or to pledge the
Trust's credit or to render the Trust liable for any purpose or for any amount.
SECTION 3. CERTIFICATES FOR SHARES.
If the Trustees so determine, a certificate or certificates for shares
of beneficial interest in any series and class of the Trust may be issued to a
shareholder upon his or her request when such shares are fully paid. All
certificates shall be signed in the name of the Trust by the Chairman (if there
be a person holding such office) or the President or any Vice President and by
the Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary, certifying the number of shares and the series and class of shares
owned by the shareholder. Any or all of the signatures on the certificate may be
facsimile. In case any officer, transfer or similar agent or registrar who has
signed or whose facsimile signature has been placed on a certificate shall have
ceased to be that officer, transfer or similar agent or registrar before that
certificate is issued, it may be issued by the Trust with the same effect as if
that person were an officer, transfer or similar agent or registrar at the date
of issue. Notwithstanding the foregoing, the Trust may adopt and use a system of
issuance, recordation and transfer of its shares by electronic or other means.
SECTION 4. LOST CERTIFICATES.
Except as provided in this Section 4, no new certificates for shares
shall be issued to replace an old certificate unless the latter is surrendered
to the Trust and canceled at the same time. The Trustees may in case any share
certificate or certificate for any other security is lost, stolen or destroyed,
authorize the issuance of a replacement certificate on such terms and conditions
as the Trustees may determine, including a provision for indemnification of the
Trust secured by a bond or other adequate security sufficient to protect the
Trust against any claim that may be made against it, including any expense or
liability on account of the alleged loss, theft or destruction of the
certificate or the issuance of the replacement certificate.
SECTION 5. TRANSFER OF SHARES.
Except as otherwise provided by the Trustees, shares shall be
transferable on the records of the Trust only by the record holder thereof or by
his or her agent thereunto duly authorized in writing upon delivery to the
Trustees or the Trust's transfer or similar agent of a duly executed instrument
of transfer and such evidence of the genuineness of such execution and
authorization and of such other matters as may be required by the Trustees. Upon
such delivery the transfer shall be recorded on the books of the Trust. Until
such record is made, the shareholder of record shall be deemed to be the holder
of such shares for all purposes and neither the Trustee nor the Trust, nor any
transfer or similar agent or registrar nor any officer, employee or agent of the
Trust shall be affected by any notice of the proposed transfer.
SECTION 6. REPRESENTATION OF SHARES OF OTHER ENTITIES HELD BY TRUST.
The Chairman (if there be a person holding such office), the President
or any Vice President or any other person authorized by the Trustees or by any
of the foregoing designated officers, is authorized to vote or represent on
behalf of the Trust any and all shares of any corporation, partnership, trust,
or other entity, foreign or domestic, standing in the name of the Trust. The
authority granted may be exercised in person or by a proxy duly executed by any
notice of the proposed transfer.
SECTION 7. FISCAL YEAR.
The fiscal year of the Trust and of each series thereof shall be fixed
and refixed or changed from time to time by the Trustees.
ARTICLE VIII
AMENDMENTS
SECTION 1. AMENDMENT.
Except as otherwise provided by the 1940 Act or by the Declaration of
Trust, these By-Laws may be adopted, amended or repealed by the Trustees by
Resolution (as defined in the Declaration of Trust).
SECTION 2. INCORPORATION BY REFERENCE INTO DECLARATION OF TRUST.
These By-Laws and any amendments hereto shall be incorporated by
reference into the Declaration of Trust.
INVESTMENT ADVISORY AGREEMENT
AGREEMENT dated ___________, 2000 between Cullen Funds Trust,
a Delaware business trust (the "Trust"), and Cullen Capital Management LLC, a
Delaware limited liability company (the "Adviser").
RECITALS
WHEREAS, the Trust is an open-end, diversified management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), and authorized to issue shares of beneficial interest
in the Trust (the "Shares");
WHEREAS, the Cullen Value Fund (the "Fund") is a series, as
described in Section 18(f)(2) of the 1940 Act, of the Trust.
WHEREAS, the Trust desires to retain the Adviser to render the
services described herein for the Fund and the Adviser is willing to so render
such services.
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT OF ADVISER. The Trust hereby appoints
the Adviser to act as investment adviser to the Fund, for the periods and on
the terms herein set forth. The Adviser accepts such appointment and agrees to
render the services herein set forth, for the compensation herein provided.
2. DUTIES OF ADVISER.
(a) Subject to the general supervision of the Board of
Trustees of the Trust, the Adviser shall manage the operations of the Fund and
provide the additional services and facilities hereinafter described. In this
regard, the Adviser shall
(i) provide supervision of the Fund's assets, furnish a
continuous investment program, determine from time to time what
investments or securities will be purchased, retained or sold by it and
what portion of its assets will be invested or held uninvested as cash,
and, subject to paragraph 3, place or arrange for the placement of
orders for the purchase and sale of securities for the account of the
Fund with brokers or dealers selected by or under the supervision of
the Adviser; and
(ii) furnish office space, office facilities, equipment,
personnel (other than the services of trustees of the Trust who are not
interested persons of the Adviser), and clerical, bookkeeping and
administrative services for managing the Fund, except such services as
are provided by a custodian or transfer, dividend disbursing or
shareholder servicing agent or fund accounting services agent of the
Fund.
(b) In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of its obligations or duties hereunder, the
Adviser shall not be liable to the Fund or the Trust or to any shareholder of
the Fund or to any creditor of the Fund of the Trust for any error of judgment,
act or omission or for any loss that may be sustained by the Fund or the Trust.
(c) The Adviser agrees that all records which it maintains for
the Fund or the Trust are the property of the Trust and it will surrender
promptly to the Trust any of such records upon the Trust's request.
3. BROKERAGE. In placing orders for the purchase or sale of
securities for the account of the Fund the Adviser is authorized, to the fullest
extent now and hereafter permitted by law, to cause the Fund or the Trust to pay
a member of a securities exchange, broker, or dealer an amount of commission for
effecting a securities transaction in excess of the amount of commission another
member of an exchange, broker, or dealer would have charged for effecting that
transaction, if the Adviser determines in good faith that such amount of
commission is reasonable in relation to the value of the brokerage and research
services (within the meaning of Section 28(e) of the Securities Exchange Act of
1934) provided by such member, broker, or dealer, viewed in terms either of that
particular transaction or the overall responsibilities of the Adviser with
respect to the accounts as to which the Adviser exercises investment discretion
(within the meaning of Section 3(a)(35) of the Securities Exchange Act of 1934).
4. EXPENSES.
(a) The Adviser shall bear the expenses incurred by it in the
performance of its duties hereunder without reimbursement from the Fund or the
Trust. In addition to the compensation payable to the Adviser hereunder, the
Fund or the Trust will pay all other expenses of its operations including,
without limitation, (i) interest, taxes and any governmental filing fees; (ii)
brokerage commissions and other costs incurred in connection with the purchase
or sale of securities; (iii) compensation and expenses of its trustees, other
than those who are interested persons of the Adviser; (iv) legal and audit
expenses; (v) the fees and expenses of the Fund's custodian and transfer,
dividend disbursing and shareholder servicing agent and fund accounting services
agent; (vi) expenses relating to the repurchase or redemption of Shares; (vii)
expenses of servicing shareholder accounts; (viii) fees and expenses related to
the registration and qualification of the Trust and its Shares under Federal and
state securities laws; (ix) expenses of printing and mailing reports, notices
and proxy material to shareholders and the expenses incidental to meetings of
shareholders; (x) insurance premiums for fidelity and other insurance coverage;
(xi) the expenses of preparing prospectuses and statements of additional
information and of printing and distributing them to existing shareholders;
(xii) expenses incurred pursuant to any plan adopted by the Trust pursuant to
Rule 12b-1 under the 1940 Act and (xiii) any nonrecurring expenses, including
actions, suits or proceedings to which the Trust is a party and any obligation
which the Trust or the Fund may incur to indemnify others.
(b) Until _________, 20__ the Adviser agrees to reimburse the
Fund, or to waive fees that would otherwise be payable by the Fund to the
Adviser, such that the total expenses borne by the Fund, including the Adviser's
fee but excluding all federal, state and local taxes, shall not in any year
exceed 2.00% of the average net asset value of the Fund for such year, based on
a determination of the net asset value of the Fund on the last business day of
each month of the year. To the extent that the Adviser reimburses the Fund or
waives fees otherwise payable by the Fund to the Adviser during any year, the
Fund agrees to reimburse the Adviser for such reimbursements or fee waivers to
the extent that the total expenses borne by the Fund, including the Adviser's
fee and any such reimbursement but excluding all federal, state and local taxes
does not exceed 2.00% during each of the next three years. Any amounts that may
be payable by the Fund to the Adviser at the conclusion of the third year
following the year of any such reimbursement or fee waiver by the Adviser for
the Fund shall be extinguished and the Fund shall have no further obligation to
pay the Adviser for such reimbursement or fee waiver.
5. COMPENSATION. For the services to be rendered and the
charges and expenses to be assumed by the Adviser hereunder, the Fund shall pay
to the Adviser a fee, payable in monthly installments, equal to 1.00% per annum
of the average daily net asset value of the Fund. For purposes of computing the
fees payable hereunder, the net asset value of the Fund shall be determined in
the same manner as for the purchase and redemption of Fund shares as described
in the current Prospectus. Such fee shall be prorated for any monthly period in
which this Agreement is not in effect for the entire period.
6. STATUS OF ADVISER; SERVICES NOT EXCLUSIVE.
(a) The Adviser shall for all purposes herein be deemed to be
an independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Fund or the Trust in
any way or otherwise be deemed an agent of the Fund or the Trust. However, one
or more shareholders, directors, officers or employees of the Adviser may serve
as trustees and/or officers of the Trust, but without compensation or
reimbursement of expenses for such services from the Trust. Nothing herein
contained shall be deemed to require the Trust to take any action contrary to
its Agreement and Declaration of Trust or any applicable statute or regulation,
or to relieve or deprive the Board of Trustees of the Trust of its
responsibility for and control of the conduct of the affairs of the Fund and the
Trust.
(b) The services of the Adviser hereunder are not exclusive,
and the Adviser shall be free to render similar services to others (including
other investment companies) so long as its services under this Agreement are not
impaired thereby.
7. DURATION AND TERMINATION. This Agreement shall become
effective on the date hereof and shall continue in effect, unless sooner
terminated as provided herein, until the second anniversary of its effective
date. Thereafter, this Agreement shall continue in effect automatically for
periods of one year so long as each such latter continuance is approved at least
annually (a) by the vote of a majority of the trustees of the Trust 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, and (b)
by the Board of Trustees of the Trust or by vote of the holders of a majority of
the outstanding Shares of the Fund. Notwithstanding the foregoing provisions,
(i) the continuance of this Agreement for the two-year period referred to in the
first sentence of this paragraph 7 is, in addition to the requirements set forth
above, subject to the approval of this Agreement by the holders of a majority of
the outstanding Shares of the Fund on or before the effective date of this
Agreement, and (ii) this Agreement may be terminated at any time, without the
payment of any penalty, (x) by the Trust's Board of Trustees or by vote of the
holders of a majority of the outstanding Shares of the Fund on 60 days' written
notice to the Adviser, or (y) by the Adviser on 60 days' written notice to the
Trust. This Agreement will terminate automatically in the event of its
assignment (as defined in the 1940 Act).
8. AMENDMENT OF AGREEMENT. This Agreement may be amended by
mutual consent, but the consent of the Trust must be approved (a) by vote of a
majority of those trustees of the Trust 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 amendment, and (b) by vote of the holders of a
majority of the outstanding Shares of the Fund.
9. MISCELLANEOUS. The captions in this Agreement are included
for convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. The term
"interested person" is used herein as defined in the 1940 Act, and the term
"majority of the outstanding Shares" is used herein as defined in the 1940 Act
with respect to voting securities. 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. This Agreement shall
be construed in accordance with applicable federal law and the laws of the State
of New York and shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors (subject to the last sentence of
paragraph 7).
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
CULLEN FUNDS TRUST
By: _______________________________
Name
Title
CULLEN CAPITAL MANAGEMENT LLC
By: _______________________________
Name
Title
CODE OF ETHICS
For Access Persons of
Cullen Capital Management LLC, and
Cullen Funds Trust
I. INTRODUCTION
A. FIDUCIARY DUTY. This Code of Ethics is based on the principle that managers,
trustees, officers and employees of Cullen Capital Management LLC ("CCM") and
Cullen Funds Trust (the "Trust") have a fiduciary duty to place the interests of
clients ahead of their own. The Code applies to all Access Persons and focuses
principally on preclearance and reporting of personal transactions in
securities. Capitalized words are defined in APPENDIX 1. Access Persons must
avoid activities, interests and relationships that might interfere with making
decisions in the best interests of the Advisory Clients of CCM.
As fiduciaries, Access Persons must at all times:
1. PLACE THE INTERESTS OF ADVISORY CLIENTS FIRST. Access Persons must
scrupulously avoid serving their own personal interests ahead of the
interests of the Advisory Clients of CCM. An Access Person may not
induce or cause an Advisory Client to take action, or not to take
action, for the personal benefit of the Access Person, rather than for
the benefit of the Advisory Client. For example, an Access Person would
violate this Code by causing an Advisory Client to purchase a Security
he or she owned for the purpose or with the intent of increasing the
price of that Security.
2. AVOID TAKING INAPPROPRIATE ADVANTAGE OF THEIR POSITION. The receipt of
investment opportunities, perquisites or gifts from persons seeking
business with the Trust or CCM could call into question the exercise of
an Access Person's independent judgment. Access persons may not, for
example, use their knowledge of portfolio transactions to profit by the
market effect of such transactions or accept gifts of such value as to
potentially impair their judgment in selecting brokers or other vendors
on behalf of Advisory Clients.
3. CONDUCT ALL PERSONAL SECURITIES TRANSACTIONS IN FULL COMPLIANCE WITH
THIS CODE, INCLUDING BOTH THE PRECLEARANCE AND REPORTING REQUIREMENTS.
Doubtful situations should be resolved in favor of Advisory Clients.
Technical compliance with the Code's procedures will not automatically
insulate from scrutiny any trades that indicate an abuse of fiduciary
duties.
B. APPENDICES TO THE CODE. The appendices to this Code are attached hereto and
are a part of the Code, and include the following:
1. DEFINITIONS-- capitalized words as defined in the Code-- (Appendix 1),
2. DISCLOSURE OF PERSONAL HOLDINGS IN SECURITIES (Appendix 2),
3. LIST OF BROAD-BASED INDICES (Appendix 3).
4. PRECLEARANCE REQUEST FOR ACCESS PERSONS (Appendix 4);
5. SECURITIES TRANSACTION REPORT (Appendix 5);
6. ANNUAL CODE OF ETHICS CERTIFICATION (APPENDIX 6); and
7. ACKNOWLEDGMENT OF RECEIPT OF CODE OF ETHICS (Appendix 7)
C. APPLICATION OF THE CODE TO INDEPENDENT TRUST TRUSTEES. This Code applies to
Independent Trust Trustees, and requires Independent Trust Trustees and their
Immediate Families to report Securities Transactions to the Administrator in
accordance with Section II.F. However, provisions of the Code requiring the
disclosure of personal holdings (Section II.A.), preclearance of trades
(Section II.B.), prohibited transactions (II.D.1.), large positions in
registered investment companies (Section II.D.2.c.), private placements
(Section II.D.3.), restrictions on serving as a director of a publicly-traded
company (Section III.F.), and receipt of gifts (Section III.B.) do not apply to
Independent Trust Trustees.
D. APPLICATION OF THE CODE TO FUNDS SUB-ADVISED BY CCM. This Code does not apply
to the directors or officers of Funds for which CCM serves as a subadviser.
II. PERSONAL SECURITIES TRANSACTIONS
A. ANNUAL DISCLOSURE OF PERSONAL HOLDINGS BY ACCESS PERSONS.
1. GENERAL REQUIREMENT. Within ten (10) days after designation as an
Access Person, and thereafter on an annual basis, all Access Persons
must report on the Disclosure of Personal Holdings In Securities Form
(APPENDIX 2) (or a substantially similar form) (i) all Securities,
including securities held in certificate form, in which they have a
Beneficial Interest, (ii) all Securities in non-client accounts for
which they make investment decisions and (iii) each securities account
the Access Person maintains with a broker, dealer or bank. This
provision does not apply to Independent Trust Trustees.
2. SECURITIES EXEMPT FROM ANNUAL DISCLOSURE REQUIREMENT. Securities
specifically excluded from the definition of Security are exempt from
the initial and annual disclosure requirement of this Code.
B. PRECLEARANCE REQUIREMENTS FOR ACCESS PERSONS.
1. GENERAL REQUIREMENT. Except for the transactions set forth in Section
II.B.2., all Securities Transactions in which an Access Person or a
member of his or her Immediate Family has a Beneficial Interest must be
precleared with the President or the President's designee. This
provision does not apply to transactions of Independent Trust Trustees
and their Immediate Families.
2. TRANSACTIONS EXEMPT FROM PRECLEARANCE REQUIREMENTS. The following
Securities Transactions are exempt from the preclearance requirements
set forth in Section II.B.1. of this Code:
a. MUTUAL FUNDS. Securities issued by any registered open-end investment
companies (including but not limited to the Trust);
b. NO KNOWLEDGE. Securities Transactions where neither CCM, the
Access Person nor an Immediate Family member knows of the
transaction before it is completed (for example, Securities
Transactions effected for an Access Person by a trustee of a
blind trust or discretionary trades involving an investment
partnership or investment club in which the Access Person is
neither consulted nor advised of the trade before it is
executed);
c. CERTAIN CORPORATE ACTIONS. Any acquisition or disposition of
Securities through stock dividends, dividend reinvestments,
stock splits, reverse stock splits, mergers, consolidations,
spin-offs, or other similar corporate reorganizations or
distributions generally applicable to all holders of the same
class of Securities;
d. RIGHTS. Any acquisition or disposition of Securities through the
exercise of rights issued by an issuer pro RATA to all holders
of a class of its Securities, to the extent the rights were
acquired in the issue or through the exercise of rights,
options, convertible bonds or other instruments acquired
in compliance with the Code;
e. APPLICATION TO COMMODITIES, FUTURES, OPTIONS ON FUTURES AND OPTIONS ON
BROAD-BASED INDICES. Commodities, futures (including currency
futures and futures on securities comprising part of a
broad-based, publicly traded market-based index of stocks),
options on futures, options on currencies and options on
certain indices designated by the President as broad-based are
not subject to the preclearance, seven day black-out, 60-day
profit disgorgement, or prohibited transaction provisions of
Section II.D.1. of the Code, but are subject to transaction
reporting in accordance with Section II.F. The options on
indices designated by the President as broad-based may be
changed from time to time and are listed in APPENDIX 3; and
f. MISCELLANEOUS. Any transaction in the following: (1) bankers
acceptances, (2) bank certificates of deposit ("CDs") and bank
and savings and loan accounts, (3) commercial paper, (4)
repurchase agreements (when backed by exempt securities), (5)
Securities that are direct obligations of the U.S. Government,
(6) the acquisition of equity securities in dividend
reinvestment plans ("DRIPs"), when the acquisition is directly
through the issuer or its non-broker agents, (7) Securities of
the employer of a member of the Access Person's Immediate
Family if such securities are beneficially owned through
participation by the Immediate Family member in a profit
sharing plan, 401(k) plan, ESOP, or other similar plan, and
(8) other Securities as may from time to time be designated in
writing by the President on the grounds that the risk of abuse
is minimal or non-existent.
THE SECURITIES TRANSACTIONS LISTED ABOVE ARE NOT NECESSARILY EXEMPT
FROM THE REPORTING REQUIREMENTS SET FORTH IN SECTION II.F.
C. PRECLEARANCE REQUESTS.
1. TRADE AUTHORIZATION REQUEST FORMS. Prior to entering an order for a
Securities Transaction that requires preclearance, the Access Person
must complete, IN WRITING, a Preclearance Request For Access Persons
Form as set forth in APPENDIX 4 and submit the completed form to the
Administrator (or his alternate). The Preclearance Request For Access
Persons Form requires Access Persons to provide certain information and
to make certain representations. Proposed Securities Transactions of
the Administrator that require preclearance must be submitted to his
alternate.
2. REVIEW OF FORM. After receiving the completed Preclearance Request For
Access Persons Form, the Administrator (or the Administrator's
alternate) will (a) review the information set forth in the form with
the President (or the President's designee), (b) confirm with the
President (or the President's designee) whether the Securities are held
by any Funds or other accounts managed by CCM and whether there are any
unexecuted orders to purchase or sell the Securities by any Trust or
accounts managed by CCM, and (c) as soon as reasonably practicable,
record the decision of the President (or the President's designee)
whether to clear the proposed Securities Transaction. The
authorization, date and time of the authorization should be reflected
on the Preclearance Request For Access Persons Form. The Administrator
(or his alternate) will keep one copy of the completed form for the
records, and send one copy to the Access Person seeking authorization.
D. PROHIBITED TRANSACTIONS.
1. PROHIBITED SECURITIES TRANSACTIONS. The following Securities
Transactions for accounts in which an Access Person or a member of his
or her Immediate Family have a Beneficial Interest, to the extent they
require preclearance under Section II.B. above, are prohibited and will
not be authorized by the President (or the President's designee) absent
exceptional circumstances, in which case a written record will be made
of the authorization of, and the rationale supporting, such Securities
Transaction (which record will be maintained for at least five years
after the fiscal year in which such authorization was granted):
a. INITIAL PUBLIC OFFERINGS. Any purchase of Securities in an Initial
Public Offering (other than a new offering of a registered
open-end investment company);
b. PENDING BUY OR SELL ORDERS. Any purchase or sale of Securities on any
day during which any Advisory Client has a pending "buy" or
"sell" order in the same Security (or Equivalent Security)
until that order is executed or withdrawn;
c. SEVEN DAY BLACKOUT. Purchases or sales of Securities by a Portfolio
Manager within seven calendar days of a purchase or sale of
the same Securities (or Equivalent Securities) by an Advisory
Client managed by that Portfolio Manager;
d. INTENTION TO BUY OR SELL FOR ADVISORY CLIENT. Purchases or sales of
Securities at a time when that Access Person intends, or knows
of another's intention, to purchase or sell that Security (or
an Equivalent Security) on behalf of an Advisory Client. This
prohibition applies whether the Securities Transaction is in
the same (E.G., two purchases or two sales) or the opposite (a
purchase and sale) direction of the transaction of the
Advisory Client; and
e. 60-DAY BLACKOUT. (1) Purchases of a Security in which an Access Person
acquires a Beneficial Interest within 60 days of the sale of
the Security (or an Equivalent Security) in which
such Access Person had a Beneficial Interest, and (2) sales of
a Security in which an Access Person had a Beneficial Interest
within 60 days of the purchase of the Security (or an
Equivalent Security) in which such Access Person has a
Beneficial Interest, unless, in each case, the Access Person
agrees to give up all profits on the transaction to a
charitable organization or otherwise as specified in
accordance with Section IV.B.1.
2. ALWAYS PROHIBITED SECURITIES TRANSACTIONS. The following Securities
Transactions are prohibited and will not be authorized under any
circumstances:
a. INSIDE INFORMATION. Any transaction in a Security while in possession
of material nonpublic information regarding the Security or
the issuer of the Security;
b. MARKET MANIPULATION. Transactions intended to raise, lower or maintain
the price of any Security or to create a false appearance of
active trading;
c. LARGE POSITIONS IN MUTUAL FUNDS. Transactions in a registered
investment company (other than the Trust) which result in the
Access Person owning five percent or more of any class of
Securities in such investment company (this prohibition does
not apply to Independent Trust Trustees); and
d. OTHERS. Any other transactions deemed by the President (or the
President's designee) to involve a conflict of interest,
possible diversion of corporate opportunity, or an appearance
of impropriety.
3. PRIVATE PLACEMENTS. Acquisitions of Beneficial Interests in Securities
in a Private Placement by an Access Person is discouraged. The
President (or the President's designee) may give permission for such
Securities Transactions only after considering, among other factors,
whether the investment opportunity should be reserved for Advisory
Clients and whether the opportunity is being offered to an Access
Person by virtue of his or her position as an Access Person. Access
Persons who have been authorized to acquire and have acquired
securities in a Private Placement are required to disclose that
investment when they play a part in any subsequent consideration of an
investment in the issuer by an Advisory Client, and the decision to
purchase Securities of such an issuer by an Advisory Client must be
independently authorized by a Portfolio Manager with no personal
interest in the issuer. This provision does not apply to Independent
Trust Trustees.
4. NO EXPLANATION REQUIRED FOR REFUSALS. In some cases, the President
(or the President's designee) may refuse to authorize a Securities
Transaction for a reason that is confidential. The President (or the
President's designee) is not required to give an explanation for
refusing to authorize any Securities Transaction.
E. LENGTH OF TRADE AUTHORIZATION APPROVAL. Any trading authorization provided
hereunder is effective until the earlier of (1) its revocation, (2) the close of
business on the second trading day after the authorization is granted (for
example, if authorization is provided on a Monday, it is effective until the
close of business on Wednesday), or (3) the Access Person learns that the
information in the Preclearance Request for Access Persons Form is not accurate.
If the order for the Securities Transaction is not placed within that period, a
new advance authorization must be obtained before the Securities Transaction is
placed. If the Securities Transaction is placed but has not been executed within
two trading days after the day the authorization is granted (as, for example, in
the case of a limit order or a "not held" order), no new authorization is
necessary unless the person placing the original order for the Securities
Transactions amends it in any way.
F. TRADE REPORTING REQUIREMENTS.
1. REPORTING REQUIREMENT.
(a) Except as provided in Section II.F.1.f., each Access Person
must report to the Administrator (or to such alternate person
as the President may designate from time to time) the
information described in Section II.F.1.c. of this Code with
respect to any Securities Transaction of which such Access
Person is aware in any Security in which the Access Person
has, or by reason of such Securities Transaction acquires, a
Beneficial Interest.
(b) Notwithstanding Section II.F.1.a., and except as provided in
Section II.F.1.f., each Independent Trust Trustee must report
to the Administrator the information described in Section II.
F.1.c. of this Code with respect to any Securities Transaction
of which the Independent Trust Trustee is aware in which the
Independent Trust Trustee has, or by reason of such Securities
Transaction acquires, any Beneficial Interest, but only if
such Independent Trust Trustee knows, or in the ordinary
course of fulfilling the Independent Trust Trustee's official
duties as a trustee of the Trust should have known, that,
during the 15-day period immediately preceding or following
the trade date of the Securities Transaction, the Security was
purchased or sold by the applicable series of the Trust, or
was being considered for such purchase or sale. In addition,
each Independent Trust Trustee shall file a report under
Section II.F.1.c. to report each Securities Transaction in
which he or she has an interest if he or she acquires as a
result thereof a Beneficial Interest of at least1/2of 1% of
the outstanding amount of any Security which may be a Security
suitable for purchase by the applicable series of the Trust.
(c) Every such required report must be made no later than ten (10)
days after the end of the calendar quarter in which the
Securities Transaction with respect to which the report
relates is effected or becomes known to the reporting Access
Person, and must contain the following information:
(i) The date of the transaction, the title, the interest rate and
maturity date (if applicable), the number of shares, and the
principal amount of each Security involved;
(ii) The nature of the transaction (i.e., purchase, sale or any
other type of acquisition or disposition);
(iii) The price at which the transaction was effected;
(iv) The name of the broker, dealer, bank or other party with or
through which the transaction was effected; and
(v) The date that the report is submitted by the Access Person.
(d) In addition, with respect to any account established by the
Access Person in which any securities were held during the
quarter for the direct or indirect benefit of the Access
Person, such report must contain the following additional
information:
(i) The name of the broker, dealer or bank with whom the Access
Person established the account;
(ii) The date the account was established; and
(iii) The date that the report is submitted by the Access Person.
(e) The form to be used for making such reports is the Security
Transaction Report Form as set forth in APPENDIX 5. If a
confirmation for the reporting Access Person's Securities
Transaction or related brokerage statement includes the
required information, the form of report may simply be to
attach a copy of such confirmation or statement.
(f) The foregoing does not apply to transactions and holdings in
(1) registered open-end investment companies, including but
not limited to series of the Trust, (2) bankers acceptances,
bank CDs and bank and savings and loan accounts, (3)
commercial paper, (4) repurchase agreements (when backed by
exempt securities), (5) Securities that are direct obligations
of the U.S. Government, (6) the acquisition of equity
securities in DRIPs when the acquisition is directly through
the issuer or its non-broker agents, (7) securities of the
employer of a member of the Access Person's Immediate Family
if such securities are beneficially owned through
participation by the Immediate Family member in a profit
sharing plan, 401(k) plan, ESOP, or other similar plan or (8)
any account over which such Access Person does not have any
direct or indirect influence or control.
2. DISCLAIMERS. Any report of a Securities Transaction for the benefit of
a person other than the individual in whose account the transaction is
placed may contain a statement that the report should not be construed
as an admission by the person making the report that he or she has any
direct or indirect beneficial ownership of the Security to which the
report relates.
3. QUARTERLY REVIEW. At least quarterly, for Securities Transactions
requiring preclearance under this Code, the Administrator (or his
alternate) shall compare the reports, confirmations and/or periodic
statements provided pursuant to Section II.F.1. above, to the approved
Preclearance Request for Access Persons Forms.
Such review shall include:
a. Whether the Securities Transaction complied with this Code;
b. Whether the Securities Transaction was authorized in advance of its
placement;
c. Whether the Securities Transaction was executed within two full trading days
of when it was authorized;
d. Whether any Fund or accounts managed by CCM owned the Securities at the time
of the Securities Transaction, and
e. Whether any Fund or separate accounts managed by CCM purchased or sold the
Securities in the Securities Transaction within 10 days of the Securities
Transaction.
4. REVIEW OF HOLDINGS REPORTS. The Administrator (or the Administrator's
alternate) shall review the reports made upon designation as an Access
Person pursuant to Section II.A.1. as such reports are made and shall
review the annual reports made pursuant to Section II.A.1. at least
annually.
5. AVAILABILITY OF REPORTS. All information supplied pursuant to this Code
will be available for inspection by the Board of Managers of CCM, the
Board of Trustees of the Trust, the President (and the President's
designee), the Administrator (and the Administrator's alternate), any
party to which any investigation is referred by any of the foregoing,
the SEC, any self-regulatory organization of which the Trust or CCM is
a member, and any state securities commission, as well as any attorney
or agent of the foregoing, the Trust or CCM.
6. RECORD RETENTION. Each of the Trust and CCM, at its respective
principal place of business, shall maintain records as follows:
a. A copy of each Code that is in effect, or at any time within the past five
years was in effect, must be maintained in an easily accessible place;
b. A record of any violation of the Code and of any action taken as a result of
the violation, must be maintained in an easily accessible place for at least
five years after the end of the fiscal year in which the violation occurs;
c. A copy of each report made by an Access Person under the Code must be
maintained for at least five years after the end of the fiscal year in which
the report is made or the information is provided, the first two years in an
easily accessible place;
d. A record of all persons, currently or within the past five years, who are or
were required to make reports under the Code, or who are or were responsible for
reviewing these reports, must be maintained in an easily accessible place; and
e. A copy of each report required by Section A.2. must be maintained for at
least five years after the end of the fiscal year in which it is made, the first
two years in an easily accessible place.
III. FIDUCIARY DUTIES
A. CONFIDENTIALITY. Access Persons are prohibited from revealing information
relating to the investment intentions, activities or portfolios of Advisory
Clients except to persons whose responsibilities require knowledge of the
information.
B. GIFTS. The following provisions on gifts apply only to employees of CCM:
1. ACCEPTING GIFTS. On occasion, because of their position with CCM or
the Trust, employees may be offered, or may receive without notice,
gifts from clients, brokers, vendors or other persons not affiliated
with such entities. Acceptance of extraordinary or extravagant gifts
is not permissible. Any such gifts must be declined or returned in
order to protect the reputation and integrity of CCM and the Trust.
Gifts of a nominal value (E.G., gifts whose reasonable value is no
more than $250 a year), and customary business meals, entertainment
(E.G., sporting events) and promotional items (E.G., pens, mugs,
T-shirts, hats, etc.) may be accepted.
If an employee receives any gift that might be prohibited
under this Code, the employee must inform the Administrator.
2. SOLICITATION OF GIFTS. Employees of CCM may not solicit gifts or
gratuities.
3. GIVING GIFTS. Except with the permission of the Administrator,
employees of CCM may not give any gift with a value in excess of $250
per year to persons associated with securities or financial
organizations, including exchanges, member organizations, commodity
firms, news media or clients of CCM.
C. PAYMENTS TO ADVISORY CLIENTS. Access Persons may not make any payments to
Advisory Clients in order to resolve any type of Advisory Client complaint.
All such matters must be handled by the President.
D. CORPORATE OPPORTUNITIES. Access Persons may not take personal advantage of
any opportunity properly belonging to any Advisory Client or CCM. This includes,
but is not limited to, acquiring Securities for one's own account that would
otherwise be acquired for an Advisory Client.
E. UNDUE INFLUENCE. Access Persons may not cause or attempt to cause any
Advisory Client to purchase, sell or hold any Security in a manner calculated to
create any personal benefit to the Access Person. If an Access Person or a
member of his or her Immediate Family stands to materially benefit from an
investment decision for an Advisory Client that the Access Person is
recommending or participating in, the Access Person must disclose to those
persons with authority to make investment decisions for the Advisory Client (or
to the Administrator (or his alternate) if the Access Person in question is a
person with authority to make investment decisions for the Advisory Client), any
Beneficial Interest that the Access Person (or a member of his or her Immediate
Family) has in that Security or an Equivalent Security, or in the issuer
thereof, where the decision could create a material benefit to the Access Person
(or a member of his or her Immediate Family) or the appearance of impropriety.
F. SERVICE AS A TRUSTEE. No Access Person, other than an Independent Trust
Trustee, may serve on the board of directors of a publicly-held company not
affiliated with CCM or the Trust absent prior written authorization by the
President. This authorization, if granted, will normally require that the
affected Access Person be isolated from those making investment decisions
related to the issuer on whose board the Access Person sits.
G. INVOLVEMENT IN CRIMINAL MATTERS OR INVESTMENT-RELATED CIVIL PROCEEDINGS. Each
Access Person must notify the President, as soon as reasonably possible, if such
Access Person is arrested, arraigned, indicted or pleads no contest to any
criminal offense (other than minor traffic violations) or if named as a
defendant in any investment-related civil proceedings or any administrative or
disciplinary action.
IV. COMPLIANCE WITH THIS CODE OF ETHICS
A. Administration.
1. INVESTIGATING VIOLATIONS OF THE CODE. The Administrator (or the
Administrator's alternate) is responsible for investigating any
suspected violation of the Code. Any material violation of the Code by
an employee of CCM or the Trust for which significant remedial action
was taken will be reported to the Boards of Trustees of the Trust not
later than the next regularly scheduled quarterly Board meeting.
2. ANNUAL REPORTS. The Administrator (or the Administrator's alternate)
will review the Code at least once a year, in light of legal and
business developments and experience in implementing the Code, and will
prepare a report in writing to CCM and the Board of Trustees of the
Trust:
a. Summarizing existing procedures concerning personal investing and any changes
in the procedures made during the past year;
b. Identifying any violation requiring significant remedial action during the
past year;
c. Identifying any recommended changes in existing restrictions or procedures
based on the past year's experience under the Code, evolving industry practices,
or developments in applicable laws or regulations; and
d. Certifying that CCM and/or the Trust have established procedures reasonably
necessary to prevent Access Persons from violating the Code.
B. REMEDIES.
1. SANCTIONS. If the Administrator (or the Administrator's alternate)
determines that an Access Person has committed a violation of the Code,
the Administrator (or the Administrator's alternate) shall bring the
matter to the attention of the President (or the President's designee),
and the President may impose sanctions and take other actions as he
deems appropriate, including a letter of caution or warning, suspension
of personal trading privileges, suspension of employment (with or
without compensation), fine, civil referral to the SEC, criminal
referral and/or termination of the employment of the violator for
cause. The President (or the President's designee) may also require
the Access Person to reverse the trade(s) in question and forfeit any
profit or absorb any loss derived therefrom. The amount of profit
shall be forwarded to a charitable organization. The Administrator
shall cause his alternate to review the Administrator's own
transactions, and the President shall cause the President's designee to
act as President with respect to him.
2. AUTHORITY. The President (or the President's designee) has the
authority, subject to the review set forth in Section IV.B.3. below, to
determine the remedy for any violation of the Code, including
appropriate disposition of any monies forfeited pursuant to this
provision. Failure to promptly abide by a directive to reverse a trade
or forfeit profits may result in the imposition of additional
sanctions.
3. REVIEW. Whenever the President (or the President's designee)
determines that an Access Person has committed a violation of this Code
that merits significant remedial action, he will report no later than
the next quarterly meeting to the Board of Trustees of the Trust,
information relating to the investigation of the violation, including
any sanctions imposed. The Board of Trustees of the Trust may modify
such sanctions as it deems appropriate. The Board of Trustees shall
have access to all information considered by the President (or the
President's designee) in relation to the case. The President (or the
President's designee) may determine whether to delay the imposition of
any sanctions pending review by the Board of Trustees.
C. EXCEPTIONS TO THE CODE. The President (or the President's designee) may grant
exceptions to the requirements of the Code on a case by case basis if he finds
that the proposed conduct involves negligible opportunity for abuse. All
material exceptions must be in writing and must be reported as soon as
practicable to the Board of Trustees of the Trust at its next regularly
scheduled meeting after the exception is granted.
D. COMPLIANCE CERTIFICATION. At least annually, all Access Persons will be
required to certify on the Annual Code of Ethics Certification set forth in
APPENDIX 6 or on a document substantially in the form of APPENDIX 6 that
they have complied with the Code in all respects.
E. INQUIRIES REGARDING THE CODE. The Administrator (or the Administrator's
alternate) or the President (or the President's designee) will answer any
questions about this Code or any other compliance-related matters.
___________, 2000
APPENDIX 1
DEFINITIONS
"ACCESS PERSON" means (1) every director, trustee, officer or
manager of CCM or the Trust (2) every employee of CCM who, in connection with
his or her regular functions, makes, participates in or obtains information
regarding the purchase or sale of a security by an Advisory Client's account;
(3) every employee of CCM who is involved in making purchase or sale
recommendations for an Advisory Client's account; (4) every employee of CCM who
obtains information concerning such recommendations prior to their
dissemination; and (5) such agents of CCM or the Trust as the President may
designate who may be deemed an Access Person if they were an employee of the
foregoing. A person does not become an Access Person simply by virtue of the
following:
i. normally assisting in the preparation of public
reports, or receiving public reports, but not receiving information
about CURRENT recommendations or trading; or
ii. a single instance or isolated instances of obtaining
knowledge of current recommendations or trading activity, or
infrequently and inadvertently obtaining such knowledge.
Any uncertainty as to whether an individual is an Access Person should be
brought to the attention of the Administrator. Such questions will be resolved
in accordance with, and this definition shall be subject to, the definition of
"Access Person" found in Rule 17j-1(a)(1) promulgated under the Investment
Company Act of 1940.
"ADMINISTRATOR" means __________________ or such alternate
person as may be designated by the Administrator from time to time. In any
event, an alternate person shall be designated to administer the Code with
respect to the Administrator.
"ADVISORY CLIENT" means any client (including both investment
companies and managed accounts) for which CCM serves as an investment adviser or
subadviser, renders investment advice, makes investment decisions or places
orders through its Trading Department.
"BENEFICIAL INTEREST" means the opportunity, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, to profit, or share in any profit derived from, a transaction in the
subject Securities. An Access Person is deemed to have a Beneficial Interest in
Securities owned by members of his or her Immediate Family. Common examples of
Beneficial Interest include joint accounts, spousal accounts, UTMA or UGMA
accounts, partnerships, trusts, and controlling interests in corporations. Any
uncertainty as to whether an Access Person has a Beneficial Interest in a
Security should be brought to the attention of the Administrator. Such questions
will be resolved by reference to the principles set forth in the definition of
"beneficial owner" found in Rules 16a-1(a)(2) and (5) promulgated under the
Securities Exchange Act of 1934.
"CCM" means Cullen Capital Management LLC, a Delaware limited
liability company.
"CODE" means this Code of Ethics.
"EQUIVALENT SECURITY" means any Security issued by the same
entity as the issuer of a subject Security that is exchangeable for or
convertible into the equity Security of the issuer. Examples include options,
rights, stock appreciation rights, warrants and convertible bonds.
"FUND" or "FUNDS" means the Cullen Value Fund, a series of the
Trust, and any other investment company registered under the Investment Company
Act of 1940 (or a portfolio or series thereof, as the case may be) for which CCM
serves as an adviser or subadviser.
"IMMEDIATE FAMILY" of an Access Person means any of the
following persons who reside in the same household as the Access Person:
child grandparent son-in-law
stepchild spouse daughter-in-law
grandchild sibling brother-in-law
parent mother-in-law sister-in-law
stepparent father-in-law
Immediate Family includes adoptive relationships and any other relationship
(whether or not recognized by law) which the Administrator determines could lead
to the possible conflicts of interest, diversions of corporate opportunity or
appearances of impropriety which the Code is intended to prevent.
"INDEPENDENT TRUST TRUSTEE" means an independent trustee of
the Trust and any other investment company for which CCM serves as the adviser.
"INITIAL PUBLIC OFFERING" means an offering of securities
registered under the Securities Act of 1933 the issuer of which, immediately
before the registration, was not subject to the reporting requirements of
sections 13 or 15(d) of the Securities Exchange Act of 1934.
"PORTFOLIO MANAGER" means a person who has or shares principal
day-to-day responsibility for managing the portfolio of an Advisory Client.
"PRESIDENT" means the president of CCM or such other person as
may be designated by the president of CCM from time to time who is involved with
the investment management business of CCM.
"PRIVATE PLACEMENT" means an offering that is exempt from
registration under the Securities Act of 1933 pursuant to section 4(2) or
section 4(6) or pursuant to Rule 504, Rule 505 or Rule 506 under the Securities
Act of 1933.
"SEC" means the Securities and Exchange Commission.
"SECURITY" includes stock, notes, bonds, debentures, and other
evidences of indebtedness (including loan participations and assignments),
limited partnership interests, investment contracts, and all derivative
instruments of the foregoing, such as options and warrants. Security does not
include futures, options on futures or options on currencies, but the purchase
and sale of such instruments are nevertheless subject to the reporting
requirements of the Code.
"TRUST" means the Cullen Funds Trust, a Delaware business
trust.
"SECURITIES TRANSACTION" means a purchase or sale of
Securities in which an Access Person or a member of his or her Immediate Family
has or acquires a Beneficial Interest.
APPENDIX 2
DISCLOSURE OF PERSONAL SECURITIES
HOLDINGS UNDER SECTION II.A.
CODE OF ETHICS
In accordance with Section II A. of the Code of Ethics of Cullen Capital
Management LLC and Cullen Funds Trust, the undersigned Access Person hereby
discloses all Securities (other than those specifically excluded from the
definition of Security), including physical certificates held, in which such
Access Person has a Beneficial Interest, including those in accounts of the
Immediate Family of the Access Person and all Securities in non-client accounts
which the Access Person makes investment decisions:
(1) Name and Access Person:
(2) If different than (1), name of the person in whose name account(s) held
(3) Relationship of (2) to (1)
(4) Broker(s) at which Account(s) maintained ______________________________
(5) Account Number(s):
(6) Contact person at Broker(s) and phone number(s)
(7) For each account, attach the most recent account statement listing
Securities in that account. If the Access Person owns Beneficial
Interests in Securities that are not listed in an attached account
statement(s), or holds physical certificates, list them below:
NAME OF SECURITY QUALITY VALUE CUSTODIAN
1.
2.
3.
4.
5.
(8) Date as of which holdings disclosed:________________ , 20___
(ATTACHED SEPARATE SHEETS IF NECESSARY.)
I certify that this form and the attached statements (if any)
constitute all of the Securities in which I have a Beneficial Interest,
including those for which I hold physical certificates, as well as those held in
accounts of my Immediate Family.
- -------------------- -----------------------------------
Date Access Person Signature
-----------------------------------
Print Name
APPENDIX 3
LIST OF BROAD-BASED INDICES
Listed below are the broad-based indices as designated by the President.
See Section II.B.3. for additional information.
Computer Technology (AMEX) Eurotop 100 (AMEX) Hong Kong Option
Index (AMEX) Japan Index (AMEX) Major Market Index (AMEX)
Major Market Index (LEAPS) (AMEX) Russell 2000 (CBOE) Russell
2000 (LEAPS) (CBOE) Semiconductor Sector (HLX) S & P 100 Index
(LEAPS) (CBOE) S & P 500 Index (LEAPS) (CBOE) Value Line Index
(PHLX) Value Line Index (LEAPS) (PHLX) Wilshire Small Cap
Index (PSE)
APPENDIX 4
PRECLEARANCE REQUEST FOR ACCESS PERSONS
1. Name of Access Person (and trading entity, if different): _________________
2. Name and symbol of Security: _____________________________________
3. Maximum quantity to be purchased or sold: _________________________________
4. Name and phone number of broker to effect transaction: ____________________
5. Check if applicable:
Purchase ____ Market Order ____ Limit Order ____ Price: ____
Sale ____ Not held order ____
(IF LIMIT ORDER ALSO INCLUDE EXECUTION PRICE)
6. In connection with the foregoing transaction, I hereby make the following
representations and warranties:
(a) I do not possess any material nonpublic information regarding
the Security or the issuer or the Security.
(b) To my knowledge:
(1) The Securities or "equivalent" securities (i.e.,
securities issued by the same issuer)[are/are not]
(circle one) held by any investment companies or
other accounts managed by CCM;
(2) There are no outstanding purchase or sell orders for
this Security (or any equivalent security) by any
investment companies or other accounts managed by
CCM; and
(3) None of the Securities (or equivalent securities) are
actively being considered for purchase or sale by any
investment companies or other accounts managed by
CCM.
(c) The Securities are not being acquired in an initial public
offering.
(d) The Securities are not being acquired in a private placement
or, if they are, I have reviewed Section II D.3. of the Code
and have attached hereto a written explanation of such
transaction.
(e) If I am a Portfolio Manager, none of the accounts I manage
purchased or sold these Securities (or equivalent securities)
within the past seven calendar days and I do not expect any
such client accounts to purchase or sell these Securities (or
equivalent securities) within seven calendar days of my
purchase or sale.
(f) If I am purchasing these Securities, I have not directly or
indirectly (through any member of my Immediate Family, any
account in which I have a Beneficial Interest or otherwise)
sold these Securities (or equivalent securities) in the prior
60 days.
(g) If I am selling these Securities, I have not directly or
indirectly (through any member of my Immediate Family, any
account in which I have a Beneficial Interest or otherwise)
purchased these Securities (or equivalent securities) in the
prior 60 days.
(h) I have read the Code of Ethics within the prior 12 months and
believe that the proposed trade fully complies with the
requirements of the Code.
- ------------------------- ------------------------------------
Date Access Person Signature
------------------------------------
Print Name
AUTHORIZATION
Authorized By: ________________ Date: ____________________ Time: _______
APPENDIX 5
SECURITY TRANSACTION REPORT
THREE MONTHS ENDED _____________
In accordance with Section II.F. of the Code of Ethics of
Cullen Funds Trust and Cullen Capital Management LLC, all Transactions in
Securities (other than those specifically excluded from the definition of
Security) in which such Access Person has a Beneficial Interest, including those
of the Immediate Family of the Access Person, during the three month period
covered by this report, as follows:
<TABLE>
<S> <C> <C> <C> <C> <C>
BROKER, DEALER
TYPE OF NO. OF SHARES OR BANK WITH OR
TRANSACTION (E.G., OR PRINCIPAL NAME OF ISSUER PRICE PER THROUGH
DATE PURCHASE, SALE) AMOUNT* AND TITLE OF CLASS SHARE OR UNIT WHOM EFFECTED
- ------------------------------------------------------------------------------------------------
</TABLE>
* If more than 1/2of 1% of outstanding class is owned, so indicate and give
percentage.
This report must be filed within 10 days after the close of the three-month
period covered. The filing of this report does not constitute an admission of
beneficial ownership of any securities referred to herein.
During the three month period covered by this report, the undersigned certifies
that neither he nor any member of his Immediate Family established any
Securities account with any broker, dealer or bank, except as follows:
[ ] Check here if none.
The undersigned certifies that the above information is true and complete and
that, during the period covered by this report, he or she has complied in all
respects with the Cullen Capital Management LLC and Cullen Funds Trust Code of
Ethics.
- ------------------------ -------------------------------
Date Access Person Signature
-------------------------------
Print Name
APPENDIX 6
ANNUAL CERTIFICATION UNDER SECTION IV.D.
In accordance with Section IV.D. of the Code of Ethics (the "Code") of Cullen
Funds Trust (the "Trust") and Cullen Capital Management LLC ("CCM"), the
undersigned hereby acknowledges that he or she has in his or her possession, and
has recently reviewed, a copy of the Code of Ethics and hereby certifies that
since January 1, 20__, he or she has complied with the policies and requirement
of the Code. The undersigned also acknowledges that he or she has in his or her
possession, and has recently reviewed, a copy of the Statement of Policy on
Insider Trading of the Trust and/or CCM, as applicable, and certifies that since
such date he or she has complied with its requirements.
- ------------------------- -----------------------------------
Date Access Person Signature
-----------------------------------
Print Name
APPENDIX 7
ACKNOWLEDGMENT OF RECEIPT
The undersigned acknowledges that he or she has received, and
has reviewed, a copy of the Code of Ethics (the "Code") of Cullen Funds Trust
(the "Trust") and Cullen Capital Management LLC ("CCM") and hereby acknowledges
that he or she is an Access Person as defined in the Code and agrees to comply
with the policies and requirements of the Code. The undersigned also
acknowledges that he or she has received, and has reviewed, a copy of the
Statement of Policy on Insider Trading of the Trust and/or CCM, as applicable,
and agrees to comply with its requirements.
- ------------------------- -----------------------------------
Date Access Person Signature
-----------------------------------
Print Name
