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DECLARATION OF TRUST
OF
STATE FARM MUTUAL FUND TRUST
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TABLE OF CONTENTS
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ARTICLE 1 NAME AND DEFINITIONS............................................................................1
1.1. NAME...............................................................................................1
1.2. DEFINITIONS........................................................................................1
ARTICLE 2 NATURE AND PURPOSE OF TRUST.....................................................................3
2.1. NATURE OF TRUST....................................................................................3
2.2. PURPOSE OF TRUST...................................................................................3
2.3. INTERPRETATION OF DECLARATION OF TRUST.............................................................3
2.3.1. GOVERNING INSTRUMENT....................................................................3
2.3.2. NO WAIVER OF COMPLIANCE WITH APPLICABLE LAW.............................................3
2.3.3. POWER OF THE TRUSTEES GENERALLY.........................................................3
ARTICLE 3 REGISTERED AGENT; OFFICES.......................................................................3
3.1. REGISTERED AGENT...................................................................................3
3.2. OFFICES............................................................................................3
ARTICLE 4 SHARES OF BENEFICIAL INTEREST...................................................................4
4.1. SHARES OF BENEFICIAL INTEREST......................................................................4
4.2. NUMBER OF AUTHORIZED SHARES........................................................................4
4.3. OWNERSHIP AND CERTIFICATION OF SHARES..............................................................4
4.4. STATUS OF SHARES...................................................................................4
4.4.1. FULLY PAID AND NON-ASSESSABLE...........................................................4
4.4.2. PERSONAL PROPERTY.......................................................................4
4.4.3. PARTY TO DECLARATION OF TRUST...........................................................4
4.4.4. DEATH OF SHAREHOLDER....................................................................4
4.4.5. TITLE TO TRUST; RIGHT TO ACCOUNTING.....................................................5
4.5. DETERMINATION OF SHAREHOLDERS......................................................................5
4.6. SHARES HELD BY TRUST...............................................................................5
4.7. SHARES HELD BY PERSONS RELATED TO TRUST............................................................5
4.8. PREEMPTIVE AND APPRAISAL RIGHTS....................................................................5
4.9. SERIES AND CLASSES OF SHARES.......................................................................5
4.9.1. GENERALLY...............................................................................5
4.9.2. ESTABLISHMENT AND DESIGNATION...........................................................6
4.9.3. CONVERSION RIGHTS.......................................................................6
4.9.4. SEPARATE AND DISTINCT NATURE............................................................6
4.9.5. RIGHTS AND PREFERENCES..................................................................6
4.9.5.1. ASSETS AND LIABILITIES "BELONGING" TO A SERIES...............................7
4.9.5.2. TREATMENT OF PARTICULAR ITEMS................................................7
4.9.5.3. LIMITATION ON INTERSERIES LIABILITIES........................................7
4.9.5.4. DIVIDENDS....................................................................8
4.9.5.5. REDEMPTION BY SHAREHOLDER....................................................8
4.9.5.6. REDEMPTION BY TRUST..........................................................8
4.9.5.7. PREVENTION OF PERSONAL HOLDING COMPANY STATUS................................9
4.9.5.8. NET ASSET VALUE..............................................................9
4.9.5.9. MAINTENANCE OF STABLE NET ASSET VALUE........................................9
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4.9.5.10. TRANSFER OF SHARES..........................................................9
4.9.5.11. EQUALITY OF SHARES..........................................................9
4.9.5.12. FRACTIONAL SHARES..........................................................10
4.9.6. RIGHTS AND PREFERENCES OF CLASSES......................................................10
ARTICLE 5 TRUSTEES.......................................................................................11
5.1. MANAGEMENT OF THE TRUST...........................................................................11
5.2. QUALIFICATION.....................................................................................11
5.3. NUMBER............................................................................................11
5.4. TERM AND ELECTION.................................................................................11
5.5. COMPOSITION OF THE BOARD OF TRUSTEES..............................................................11
5.6. RESIGNATION AND RETIREMENT........................................................................11
5.7. REMOVAL...........................................................................................11
5.8. VACANCIES.........................................................................................12
5.9. OWNERSHIP OF ASSETS OF THE TRUST..................................................................12
5.10. POWERS...........................................................................................12
5.10.1. BYLAWS................................................................................12
5.10.2. OFFICERS, AGENTS, AND EMPLOYEES.......................................................13
5.10.3. COMMITTEES............................................................................14
5.10.3.1. GENERALLY..................................................................14
5.10.3.2. EXECUTIVE COMMITTEE........................................................14
5.10.4. ADVISERS, ADMINISTRATORS, DEPOSITORIES, AND CUSTODIANS................................14
5.10.5. COMPENSATION..........................................................................14
5.10.6. DELEGATION OF AUTHORITY...............................................................14
5.10.7. SUSPENSION OF SALES...................................................................15
5.11. CERTAIN ADDITIONAL POWERS........................................................................15
5.11.1. INVESTMENTS...........................................................................15
5.11.2. DISPOSITION OF ASSETS.................................................................15
5.11.3. OWNERSHIP.............................................................................15
5.11.4. SUBSCRIPTION..........................................................................15
5.11.5. PAYMENT OF EXPENSES...................................................................15
5.11.6. FORM OF HOLDING.......................................................................15
5.11.7. REORGANIZATION, CONSOLIDATION, OR MERGER..............................................16
5.11.8. COMPROMISE............................................................................16
5.11.9. PARTNERSHIPS..........................................................................16
5.11.10. BORROWING............................................................................16
5.11.11. GUARANTEES...........................................................................16
5.11.12. INSURANCE............................................................................16
5.11.13. PENSIONS.............................................................................16
5.12. MEETINGS AND VOTE OF TRUSTEES....................................................................17
5.12.1. REGULAR MEETINGS......................................................................17
5.12.2. SPECIAL MEETINGS......................................................................17
5.12.3. TELEPHONIC MEETINGS...................................................................17
5.12.4. QUORUM................................................................................17
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5.12.5. REQUIRED VOTE.........................................................................17
5.12.6. CONSENT IN LIEU OF A MEETING..........................................................17
ARTICLE 6 SERVICE PROVIDERS..............................................................................17
6.1. INVESTMENT ADVISER................................................................................17
6.2. UNDERWRITER AND TRANSFER AGENT....................................................................18
6.3. CUSTODIANS........................................................................................18
6.4. ADMINISTRATOR.....................................................................................18
6.5. OTHER CONTRACTS...................................................................................18
6.6. PARTIES TO CONTRACTS..............................................................................18
ARTICLE 7 SHAREHOLDERS' VOTING POWERS AND MEETINGS.......................................................19
7.1. VOTING POWERS.....................................................................................19
7.1.1. MATTERS REQUIRING SHAREHOLDERS ACTION..................................................19
7.1.2. SEPARATE VOTING BY SERIES AND CLASS....................................................19
7.1.3. NUMBER OF VOTES........................................................................19
7.1.4. CUMULATIVE VOTING......................................................................20
7.1.5. VOTING OF SHARES; PROXIES..............................................................20
7.1.6. ACTIONS PRIOR TO THE ISSUANCE OF SHARES................................................20
7.2. MEETINGS OF SHAREHOLDERS..........................................................................20
7.2.1. ANNUAL OR REGULAR MEETINGS.............................................................20
7.2.2. SPECIAL MEETINGS.......................................................................20
7.2.3. NOTICE OF MEETINGS.....................................................................20
7.2.4. CALL OF MEETINGS.......................................................................21
7.3. RECORD DATES......................................................................................21
7.4. QUORUM............................................................................................21
7.5. REQUIRED VOTE.....................................................................................21
7.6. ADJOURNMENTS......................................................................................21
7.7. ACTIONS BY WRITTEN CONSENT........................................................................21
7.8. INSPECTION OF RECORDS.............................................................................22
7.9. ADDITIONAL PROVISIONS.............................................................................22
ARTICLE 8 LIMITATION OF LIABILITY AND INDEMNIFICATION....................................................22
8.1. GENERAL PROVISIONS................................................................................22
8.1.1. GENERAL LIMITATION OF LIABILITY........................................................22
8.1.2. NOTICE OF LIMITED LIABILITY............................................................22
8.1.3. LIABILITY LIMITED TO ASSETS OF THE TRUST...............................................22
8.2. LIABILITY OF TRUSTEES.............................................................................23
8.2.1. LIABILITY FOR OWN ACTIONS..............................................................23
8.2.2. LIABILITY FOR ACTIONS OF OTHERS........................................................23
8.2.3. ADVICE OF EXPERTS AND REPORTS OF OTHERS................................................23
8.2.4. BOND...................................................................................23
8.2.5. DECLARATION OF TRUST GOVERNS ISSUES OF LIABILITY.......................................23
8.3. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES..................................................23
8.4. LIABILITY OF SHAREHOLDERS.........................................................................23
8.4.1. LIMITATION OF LIABILITY................................................................24
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8.4.2. INDEMNIFICATION OF SHAREHOLDERS........................................................24
8.5. INDEMNIFICATION...................................................................................24
8.5.1. INDEMNIFICATION OF COVERED PERSONS.....................................................24
8.5.2. EXCEPTIONS.............................................................................24
8.5.3. RIGHTS OF INDEMNIFICATION..............................................................25
8.5.4. EXPENSES OF INDEMNIFICATION............................................................25
8.5.5. CERTAIN DEFINED TERMS RELATING TO INDEMNIFICATION......................................26
ARTICLE 9 TERMINATION OR REORGANIZATION..................................................................26
9.1. TERMINATION OF TRUST OR SERIES ...................................................................26
9.1.1. TERMINATION ...........................................................................26
9.1.2. DISTRIBUTION OF ASSETS ................................................................26
9.1.3. CERTIFICATE OF CANCELLATION ...........................................................27
9.2. REORGANIZATION ...................................................................................27
9.3. MERGER OR CONSOLIDATION ..........................................................................27
9.3.1. AUTHORITY TO MERGE OR CONSOLIDATE .....................................................27
9.3.2. NO SHAREHOLDER APPROVAL REQUIRED ......................................................27
9.3.3. SUBSEQUENT AMENDMENTS .................................................................27
9.3.4. CERTIFICATE OF MERGER OR CONSOLIDATION ................................................28
ARTICLE 10 AMENDMENTS ....................................................................................28
10.1. GENERALLY .......................................................................................28
10.2. CERTIFICATE OF AMENDMENT ........................................................................28
10.3. PROHIBITED RETROSPECTIVE AMENDMENTS .............................................................28
ARTICLE 11 MISCELLANEOUS PROVISIONS ......................................................................28
11.1. CERTIFIED COPIES ................................................................................28
11.2. CERTAIN INTERNAL REFERENCES .....................................................................28
11.3. HEADINGS ........................................................................................29
11.4. RESOLUTION OF AMBIGUITIES .......................................................................29
11.5. SIGNATURES ......................................................................................29
11.6. GOVERNING LAW ...................................................................................29
11.7. SEVERABILITY ....................................................................................29
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DECLARATION OF TRUST
OF
STATE FARM MUTUAL FUND TRUST
This DECLARATION OF TRUST is made as of this day, June 8, 2000, by the
Trustees hereunder.
WHEREAS, the Trustees desire to establish a trust for the purpose of
carrying on the business of an open-end management investment company; and
WHEREAS, in furtherance of such purpose, the Trustees and any successor
Trustees elected in accordance with Article 5 hereof are acquiring and may
hereafter acquire assets which they will hold and manage as trustees of a
Delaware business trust in accordance with the provisions hereinafter set forth;
and
WHEREAS, this Trust is authorized to issue its shares of beneficial
interest in one or more separate series and classes of series, all in accordance
with the provisions set forth in this Declaration of Trust;
NOW, THEREFORE, the Trustees hereby declare that they will hold in
trust all cash, securities, and other assets which they may from time to time
acquire in any manner as Trustees hereunder, and that they will manage and
dispose of the same upon the following terms and conditions for the benefit of
the holders of shares of beneficial interest in this Trust as hereinafter set
forth.
ARTICLE 1
NAME AND DEFINITIONS
SECTION 1.1. NAME. This Trust shall be known as the "State Farm Mutual
Fund Trust" and the Trustees shall conduct the business of the Trust under that
name or any other name or names as they may from time to time determine. The
Trust acknowledges that it has adopted its name through permission of State Farm
Mutual Automobile Insurance Company, an Illinois mutual insurance company
("State Farm Mutual"), and acknowledges that State Farm Mutual has the sole and
exclusive right to use or license the use of the name "State Farm" in commerce.
The Trust agrees that at the request of State Farm Mutual the Trust shall take
all requisite action to amend this Declaration of Trust to eliminate the name
"State Farm" from the Trust's name and from the designations of its shares of
beneficial interest. The Trust further acknowledges that State Farm Mutual
reserves the right to grant the non-exclusive right to use the name "State Farm"
to any other corporation, trust, partnership, or other person, including other
investment companies, whether now in existence or hereafter created.
SECTION 1.2. DEFINITIONS. Whenever used herein, unless otherwise
required by the context or specifically provided below:
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(a) The "Trust" shall mean the Delaware business trust established by
this Declaration of Trust, as amended from time to time;
(b) "Trustee" and "Trustees" shall mean each signatory to this
Declaration of Trust so long as such signatory shall continue in office in
accordance with the terms hereof, and all other individuals who at the time in
question have been duly elected or appointed and qualified in accordance with
Article 5 hereof and are then in office;
(c) "Shares" shall mean the shares of beneficial interest in the Trust
described in Article 4 hereof and shall include fractional and whole Shares;
(d) "Shareholder" shall mean a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 (and
any successor statute) and the rules and regulations thereunder, all as amended
from time to time;
(f) "Person," "Interested Person," and "Principal Underwriter" shall
have the meanings given them in the 1940 Act;
(g) "Commission" shall mean the United States Securities and Exchange
Commission (or any successor agency thereto);
(h) "Declaration of Trust" or "Declaration" shall mean this Declaration
of Trust as amended or restated from time to time;
(i) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time;
(j) "Series" shall mean any of the separate series of Shares
established and designated under or in accordance with the provisions of Article
4 and to which the Trustees have allocated assets and liabilities of the Trust
in accordance with Article 4;
(k) The "DBTA" refers to the Delaware Business Trust Act, Chapter 38 of
Title 12 of the Delaware Code (and any successor statute), as amended from time
to time; and
(l) The "Code" refers to the Internal Revenue Code of 1986 (and any
successor statute) and the rules and regulations thereunder, all as amended from
time to time.
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ARTICLE 2
NATURE AND PURPOSE OF TRUST
SECTION 2.1. NATURE OF TRUST. The Trust is a business trust of the type
referred to in the DBTA. The Trustees shall file a certificate of trust in
accordance with Section 3810 of the DBTA. The Trust is not intended to be, shall
not be deemed to be, and shall not be treated as, a general or a limited
partnership, joint venture, corporation or joint stock company, nor shall the
Trustees or Shareholders or any 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.
SECTION 2.2. PURPOSE OF TRUST. The purpose of the Trust is to engage
in, operate and carry on the business of an open-end management investment
company and to do any and all acts or things as are necessary, convenient,
appropriate, incidental or customary in connection therewith.
SECTION 2.3. INTERPRETATION OF DECLARATION OF TRUST.
SECTION 2.3.1. GOVERNING INSTRUMENT. This Declaration of Trust
shall be the governing instrument of the Trust and shall be governed by and
construed according to the laws of the State of Delaware.
SECTION 2.3.2. NO WAIVER OF COMPLIANCE WITH APPLICABLE LAW. No
provision of this Declaration shall be effective to require a waiver of
compliance with any provision of the Securities Act of 1933, as amended, or the
1940 Act, or of any valid rule, regulation or order of the Commission
thereunder.
SECTION 2.3.3. POWER OF THE TRUSTEES GENERALLY. Except as
otherwise set forth herein, the Trustees may exercise all powers of trustees
under the DBTA on behalf of the Trust.
ARTICLE 3
REGISTERED AGENT; OFFICES
SECTION 3.1. REGISTERED AGENT. The name of the registered agent of the
Trust is Corporation Service Company and the registered agent's business address
in Delaware is 1013 Centre Road, Wilmington, Delaware 19805.
SECTION 3.2. OFFICES. The Trust shall maintain a registered office
within the State of Delaware which shall be identical to the business office of
the Registered Agent of the Trust as set forth in Section 3.1. The Trustees may,
at any time, establish branch or subordinate offices at any place or places
where the Trust intends to do business.
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ARTICLE 4
SHARES OF BENEFICIAL INTEREST
SECTION 4.1. SHARES OF BENEFICIAL INTEREST. The beneficial interests in
the Trust shall be divided into Shares, all without par value. The Trustees
shall have the authority from time to time to divide the Shares into two (2) or
more separate and distinct series of Shares ("Series") as provided in Section
4.9 of this Article 4, and to divide each such Series of Shares into two (2) or
more classes of Shares ("Classes").
SECTION 4.2. NUMBER OF AUTHORIZED SHARES. The Trustees are authorized
to issue an unlimited number of Shares. The Trustees may issue Shares for such
consideration and on such terms as they may determine (or for no consideration
if pursuant to a Share dividend or split), all without action or approval of the
Shareholders.
SECTION 4.3. OWNERSHIP AND CERTIFICATION OF SHARES. The Secretary of
the Trust, or the Trust's transfer or similar agent, shall record the ownership
and transfer of Shares of each Series and Class separately on the record books
of the Trust. The record books of the Trust, as kept by the Secretary of the
Trust or any transfer or similar agent, shall contain the name and address of
and the number of Shares held by each Shareholder, and such record books shall
be conclusive as to who are the holders of Shares and as to the number of Shares
held from time to time by such Shareholders. No certificates certifying the
ownership of Shares shall be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, transfer of Shares, and
similar matters for the Trust or any Series.
SECTION 4.4. STATUS OF SHARES.
SECTION 4.4.1. FULLY PAID AND NON-ASSESSABLE. All Shares when
issued on the terms determined by the Trustees shall be fully paid and
non-assessable.
SECTION 4.4.2. PERSONAL PROPERTY. Shares shall be deemed to be
personal property giving only the rights provided in this Declaration of Trust.
SECTION 4.4.3. PARTY TO DECLARATION OF TRUST. Every Person by
virtue of having become registered as a Shareholder shall be held to have
expressly assented and agreed to the terms of this Declaration of Trust and to
have become a party thereto.
SECTION 4.4.4. DEATH OF SHAREHOLDER. The death of a
Shareholder during the continuance of the Trust shall not operate to terminate
the Trust 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. The representative shall be entitled to the same rights as the
decedent under this Trust.
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SECTION 4.4.5. TITLE TO TRUST; RIGHT TO ACCOUNTING. Ownership
of Shares shall not entitle the Shareholder to any title in or to the whole or
any part of the Trust property or right to call for a partition or division of
the same or for an accounting.
SECTION 4.5. DETERMINATION OF SHAREHOLDERS. The Trustees may from time
to time close the transfer books or establish record dates and times for the
purposes of determining the Shareholders entitled to be treated as such, to the
extent provided or referred to in Section 7.3.
SECTION 4.6. SHARES HELD BY TRUST. The Trustees may hold as treasury
shares, reissue for such consideration and on such terms as they may determine,
or cancel, at their discretion from time to time, any Shares of any Series or
Class reacquired by the Trust.
SECTION 4.7. SHARES HELD BY PERSONS RELATED TO TRUST. Any Trustee,
officer or other agent of the Trust, and any organization in which any such
person is interested may acquire, own, hold and dispose of Shares to the same
extent as if such person were not a Trustee, officer or other agent of the
Trust; and the Trust may issue and sell or cause to be issued and sold and may
purchase Shares from any such person or any such organization subject only to
the general limitations, restrictions or other provisions applicable to the sale
or purchase of such Shares generally.
SECTION 4.8. PREEMPTIVE AND APPRAISAL RIGHTS. (a) Shareholders shall
not, as Shareholders, have any right to acquire, purchase or subscribe for any
Shares or other securities of the Trust which it may hereafter issue or sell,
other than such right, if any, as the Trustees in their discretion may
determine. Shareholders shall have no appraisal rights with respect to their
Shares and, except as otherwise determined by resolution of the Trustees in
their sole discretion, shall have no exchange or conversion rights with respect
to their Shares.
(b) No action may be brought by a Shareholder on behalf of the Trust
unless Shareholders owning no less than a majority of the then outstanding
Shares, or Series or Class thereof, join in the bringing of such action. A
Shareholder shall not be entitled to participate in a derivative or class action
lawsuit on behalf of any other Series or any other Class or on behalf of the
Shareholders in any other Series or any other Class of the Trust than the Series
or Class of Shares owned by such Shareholder.
SECTION 4.9. SERIES AND CLASSES OF SHARES.
SECTION 4.9.1. GENERALLY. In addition to the Series and Class
established and designated in Section 4.9.2, the Shares of the Trust shall be
divided into one or more separate and distinct Series or Classes of a Series as
the Trustees shall from time to time establish and designate.
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SECTION 4.9.2. ESTABLISHMENT AND DESIGNATION. The Trustees
shall have exclusive power without the requirement of Shareholder approval to
establish and designate separate and distinct Series of Shares and with respect
to any Series of Shares, to establish and designate separate and distinct
Classes of Shares. The establishment and designation of any Series (in addition
to those established and designated in this Section below) or Class shall be
effective upon the execution by a majority of the Trustees of an instrument
setting forth such establishment and designation and the relative rights and
preferences of the Shares of such Series or Class, or as otherwise provided in
such instrument. Each such instrument shall have the status of an amendment to
this Declaration of Trust. Without limiting the authority of the Trustees to
establish and designate any further Series or Classes, the Trustees hereby
establish and designate the following ten (10) initial Series, the shares of
which shall all be issued in two Classes, Class A and Class B:
State Farm Large Cap Equities Fund State Farm International Index Fund
State Farm Small Cap Equities Fund State Farm Equity and Bond Fund
State Farm International Equities Fund State Farm Bond Fund
State Farm Index 500 Fund State Farm Tax-advantaged Bond Fund
State Farm Small Cap Index Fund State Farm Money Market Fund
SECTION 4.9.3. CONVERSION RIGHTS. Subject to compliance with
the requirements of the 1940 Act, the Trustees shall have the authority to
provide that Shareholders of any Series or Class within a Series shall have the
right to convert such Shares into Shares of one or more other Series or Classes
in accordance with such requirements and procedures as may be established by the
Trustees.
SECTION 4.9.4. SEPARATE AND DISTINCT NATURE. Each Series,
including without limitation Series specifically established in Section 4.9.2,
shall be separate and distinct from any other Series and shall maintain separate
and distinct records on the books of the Trust, and the assets belonging to any
such Series shall be held and accounted for separately from the assets of the
Trust or any other Series.
SECTION 4.9.5. RIGHTS AND PREFERENCES OF SERIES. The Trustees
shall have exclusive power without the requirement of Shareholder approval to
fix and determine the
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relative rights and preferences as between the Shares of the separate Series.
The initial Series and any further Series that may from time to time be
established and designated by the Trustees shall (unless the Trustees otherwise
determine with respect to some further Series at the time of establishing and
designating the same) have relative rights and preferences as set forth in this
Section 4.9.5.
SECTION 4.9.5.1. ASSETS AND LIABILITIES "BELONGING"
TO A SERIES. All consideration received by the Trust for the issue or sale
of Shares of a particular Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be held
and accounted for separately from the other assets of the Trust and of every
other Series and may be referred to herein as "assets belonging to" that Series.
The assets belonging to a particular Series shall belong to that Series for all
purposes, and to no other Series, subject only to the rights of creditors of
that Series. Such consideration, assets, income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments which are not readily identifiable as
belonging to any particular Series (collectively "General Items"), the Trustees
shall allocate to and among any one or more of the Series in such manner and on
such basis as they, in their sole discretion, deem fair and equitable. Any
General Items so allocated to a particular Series shall belong to that Series.
Each such allocation by the Trustees shall be conclusive and binding upon all
Shareholders for all purposes. The assets belonging to each particular Series
shall be charged with the liabilities in respect of that Series and all
expenses, costs, charges and reserves attributable to that Series, and any
general liabilities, expenses, costs, charges or reserves of the Trust which are
not readily identifiable as belonging to any particular Series shall be
allocated and charged by the Trustees to and among any one or more of the Series
established and designated from time to time in such manner and on such basis as
the Trustees in their sole discretion deem fair and equitable. Each allocation
of liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon all Shareholders for all purposes.
SECTION 4.9.5.2. TREATMENT OF PARTICULAR ITEMS. The
Trustees shall have full discretion, to the extent consistent with the 1940
Act and consistent with generally accepted accounting principles, to determine
which items shall be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
SECTION 4.9.5.3. LIMITATION ON INTERSERIES
LIABILITIES. Subject to the right of the Trustees in their discretion to
allocate general liabilities, expenses, costs, charges or reserves as provided
in Section 4.9.5.1, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular Series shall
be enforceable against the assets of such Series only, and not against the
assets of any other Series. Notice of this limitation on liabilities between and
among Series shall be set forth in the certificate of trust
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of the Trust (whether originally or by amendment) as filed or to be filed in the
Office of the Secretary of State of the State of Delaware pursuant to the DBTA,
and upon the giving of such notice in the certificate of trust, the statutory
provisions of Section 3804 of the DBTA relating to limitations on liabilities
between and among series (and the statutory effect under Section 3804 of setting
forth such notice in the certificate of trust) shall become applicable to the
Trust and each Series.
SECTION 4.9.5.4. DIVIDENDS. Dividends and capital
gains distributions on Shares of a particular Series may be paid with such
frequency, in such form, and in such amount as the Trustees may determine by
resolution adopted from time to time, or pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine. All dividends and distributions on Shares of a particular Series
shall be distributed PRO RATA to the holders of Shares of that Series in
proportion to the number of Shares of that Series held by such holders at the
date and time of record established for the payment of such dividends or
distributions. Such dividends and distributions may be paid in cash, property or
additional Shares of that Series, or a combination thereof, as determined by the
Trustees or pursuant to any program that the Trustees may have in effect at the
time for the election by each Shareholder of the form in which dividends or
distributions are to be paid to that Shareholder. Any such dividend or
distribution paid in Shares shall be paid at the net asset value thereof as
determined in accordance with Section 4.9.5.8.
SECTION 4.9.5.5. REDEMPTION BY SHAREHOLDER. Each
Shareholder shall have the right at such times as may be permitted by the Trust
and as otherwise required by the 1940 Act to require the Trust to redeem all or
any part of such Shareholder's Shares of a Series at a redemption price per
Share equal to the net asset value per Share of such Series next determined in
accordance with Section 4.9.5.8 after the Shares are properly tendered for
redemption, less such redemption fee (not to exceed 2.0% of the net asset value
of the Shares redeemed), if any, as may be established by the Trustees in its
sole discretion. Payment of the redemption price shall be in cash; PROVIDED,
HOWEVER, that the Trust may, subject to the requirements of the 1940 Act, make
payment wholly or partly in securities or other assets belonging to the Series
of which the Shares being redeemed are part at the value of such securities or
assets used in such determination of net asset value. Notwithstanding the
foregoing, the Trust may postpone payment of the redemption price and may
suspend the right of the holders of 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 any applicable provision of the 1940 Act.
SECTION 4.9.5.6. REDEMPTION BY TRUST. The Trustees
may cause the Trust to redeem at net asset value the Shares of any Series
held by a Shareholder upon such conditions as may from time to time be
determined by the Trustees. Upon redemption of Shares pursuant to this Section
4.9.5.6, the Trust shall promptly cause payment of the full redemption price to
be made to such Shareholder for Shares so redeemed.
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SECTION 4.9.5.7. PREVENTION OF PERSONAL HOLDING
COMPANY STATUS. The Trust may reject any purchase order, refuse to transfer any
Shares, and compel the redemption of Shares if, in its opinion, any such
rejection, refusal, or redemption would prevent the Trust from becoming a
personal holding company as defined by the Code.
SECTION 4.9.5.8. NET ASSET VALUE. The net asset
value per Share of any Series shall be determined in accordance with the methods
and procedures established by the Trustees from time to time and, to the extent
required by applicable law, as disclosed in the then current prospectus or
statement of additional information for the Series.
SECTION 4.9.5.9. MAINTENANCE OF STABLE NET ASSET
VALUE. 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 1940 Act for the continuing
declarations of income attributable to that Series as dividends payable in
additional Shares of that Series or in cash at the designated constant dollar
amount and for the handling of any losses attributable to that Series. Such
procedures may provide that in the event of any loss each Shareholder shall be
deemed to have contributed to the capital of the Trust attributable to that
Series his or her PRO RATA portion of the total number of Shares required to be
canceled in order to permit the net asset value per Share of that Series to be
maintained, after reflecting such loss, at the designated constant dollar
amount. Each Shareholder of the Trust shall be deemed to have agreed, by his
investment in any Series with respect to which the Trustees shall have adopted
any such procedure, to make the contribution referred to in the preceding
sentence in the event of any such loss. The Trustees may delegate any of their
powers and duties under this Section 4.9.5.9 with respect to appraisal of assets
and liabilities in the determination of net asset value 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 4.9.5.10. TRANSFER OF SHARES. Except to the
extent that transferability is limited by applicable law or such procedures
as may be developed from time to time by the Trustees or the appropriate
officers of the Trust, Shares shall be transferable on the records of the Trust
only by the record holder thereof or by his agent thereunto duly authorized in
writing, upon delivery to the Trustees or the Trust's transfer agent of a duly
executed instrument of transfer, together with a Share certificate, if one is
outstanding, and such evidence of the genuineness of each such execution and
authorization and of such other matters as may be required by the Trustees. Upon
such delivery the transfer shall be recorded on the register of the Trust.
SECTION 4.9.5.11. EQUALITY OF SHARES. All Shares of
each particular Series shall represent an equal proportionate interest in the
assets belonging to that Series (subject to the liabilities belonging to that
Series), and each Share of any particular Series shall be equal in this respect
to each other Share of that Series. This Section 4.9.5.11 shall not restrict
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any distinctions otherwise permissible under this Declaration of Trust with
respect to any Classes within a Series.
SECTION 4.9.5.12. FRACTIONAL SHARES. Any fractional
Share of any Series, if any such fractional Share is outstanding, shall carry
proportionately all the rights and obligations of a whole Share of that Series,
including rights and obligations with respect to voting, receipt of dividends
and distributions, redemption of Shares, and liquidation of the Trust or any
Series.
SECTION 4.9.6. RIGHTS AND PREFERENCES OF CLASSES. The Trustees
shall have exclusive power without the requirement of Shareholder approval to
fix and determine the relative rights and preferences as between the separate
Classes within any Series. The initial Classes and any further Classes that may
from time to time be established and designated by the Trustees shall (unless
the Trustees otherwise determine with respect to some further Class at the time
of establishing and designating the same) have relative rights and preferences
as set forth in this Section 4.9.6. If a Series is divided into multiple
Classes, the Classes may be invested with one or more other Classes in the
common investment portfolio comprising the Series. Notwithstanding the
provisions of Section 4.9.5, if two or more Classes are invested in a common
investment portfolio, the shares of each such Class shall be subject to the
following preferences, conversion and other rights, voting powers, restrictions,
conditions of redemption, and, if there are other Classes invested in a
different investment portfolio comprising a different Series, shall also be
subject to the provisions of Section 4.9.5 at the Series level as if the Classes
invested in the common investment portfolio were one Class:
(a) The income and expenses of the Series shall be allocated among
the Classes comprising the Series in such manner as may be determined by the
Trustees in accordance with applicable law;
(b) As more fully set forth in this Section 4.9.6, the liabilities
and expenses of the Classes comprising the Series shall be determined separately
from those of each other and, accordingly, the net asset values, the dividends
and distributions payable to Shareholders, and the amounts distributable in the
event of liquidation of the Trust or termination of a Series to Shareholders may
vary within the classes comprising the Series. Except for these differences and
certain other differences set forth in this Section 4.9.6 or elsewhere in this
Declaration of Trust, the Classes comprising a Series shall have the same
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption.
(c) The dividends and distributions of investment income and
capital gains with respect to the Classes comprising a Series shall be in such
amounts as may be declared from time to time by the Trustees, and such dividends
and distributions may vary among the Classes comprising the Series to reflect
differing allocations of the expenses and liabilities of the Trust among the
Classes and any resultant differences between the net asset values per Share of
the
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Classes, to such extent and for such purposes as the Trustees may deem
appropriate. The allocation of investment income, capital gains, expenses, and
liabilities of the Trust among the Classes comprising a Series shall be
determined by the Trustees in a manner that is consistent with applicable law.
ARTICLE 5
TRUSTEES
SECTION 5.1. MANAGEMENT OF THE TRUST. The business and affairs of the
Trust shall be managed by the Trustees, and they shall have all powers necessary
and desirable to carry out that responsibility, including those specifically set
forth in Sections 5.10 and 5.11 herein.
SECTION 5.2. QUALIFICATION. Each Trustee shall be a natural person. A
Trustee need not be a Shareholder, a citizen of the United States, or a resident
of the State of Delaware.
SECTION 5.3. NUMBER. The number of Trustees which shall constitute the
entire Board of Trustees shall be not less than one (1) nor more than fifteen
(15), which number may be increased or decreased by the Trustees, but shall
never be less than the minimum number permitted by the DBTA. No decrease in the
number of Trustees shall have the effect of removing any Trustee from office
prior to the expiration of his or her term, but the number of Trustees may be
decreased in conjunction with the removal of a Trustee pursuant to Section 5.7.
SECTION 5.4. TERM AND ELECTION. Each Trustee shall hold office until
the next meeting of Shareholders called for the purpose of considering the
election or re-election of such Trustee or of a successor to such Trustee, and
until his or her successor is elected and qualified, and any Trustee who is
appointed by the Trustees in the interim to fill a vacancy as provided hereunder
shall have the same remaining term as that of his or her predecessor, if any, or
such term as the Trustees may determine.
SECTION 5.5. COMPOSITION OF THE BOARD OF TRUSTEES. No election or
appointment of any Trustee shall take effect if such election or appointment
would cause the number of Trustees who are Interested Persons to exceed the
number permitted by Section 10 of the 1940 Act.
SECTION 5.6. RESIGNATION AND RETIREMENT. Any Trustee may resign or
retire as a Trustee (without need for prior or subsequent accounting) by an
instrument in writing signed by such Trustee and delivered or mailed to the
Chairman, if any, the President, or the Secretary of the Trust. Such resignation
or retirement shall be effective upon such delivery, or at a later date
according to the terms of the instrument.
SECTION 5.7. REMOVAL. Any Trustee may be removed with or without cause
at any time: (1) by written instrument signed by two-thirds (2/3) of the number
of Trustees in office prior to such removal, specifying the date upon which such
removal shall become effective, or (2) by the
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affirmative vote of Shareholders holding not less than two-thirds (2/3) of
Shares outstanding, cast in person or by proxy at any meeting called for that
purpose.
SECTION 5.8. VACANCIES. Any vacancy or anticipated vacancy resulting
for any reason, including without limitation the death, resignation, retirement,
removal, or incapacity of any of the Trustees, or resulting from an increase in
the number of Trustees may (but need not unless required by the 1940 Act) be
filled by a majority of the Trustees then in office, subject to the provisions
of Section 16 of the 1940 Act, through the appointment in writing of such other
person as such remaining Trustees in their discretion shall determine. The
appointment shall be effective upon the written acceptance of the person named
therein to serve as a trustee and agreement by such person to be bound by the
provisions of this Declaration of Trust, except that any such appointment in
anticipation of a vacancy occurring by reason of the resignation, retirement, or
increase in number of Trustees to be effective at a later date shall become
effective only at or after the effective date of such resignation, retirement,
or increase in number of Trustees.
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SECTION 5.9. OWNERSHIP OF ASSETS OF THE TRUST. The assets of the Trust
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 title to all the Trust property shall be vested in the Trust as
a separate legal entity under the DBTA, except that the Trustees shall have the
power to cause legal title to any Trust property to be held by or in the name of
one or more of the Trustees or in the name of any other Person on behalf of the
Trust on such terms as the Trustees may determine. In the event that title to
any part of the Trust property is vested in one or more Trustees, the right,
title and interest of the Trustees in the Trust property shall vest
automatically in each person who may hereafter become a Trustee upon his or her
due election and qualification. Upon the resignation, removal or death of a
Trustee he or she shall automatically cease to have any right, title or interest
in any of the Trust property, and the right, title and interest of such Trustee
in the Trust property shall vest automatically in the remaining Trustees. To the
extent permitted by law, such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered. No
Shareholder shall be deemed to have a severable ownership in any individual
asset of the Trust or any right of partition or possession thereof.
SECTION 5.10. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees, and they
shall have all powers necessary or convenient to carry out that responsibility
and the purpose of the Trust including, but not limited to, those enumerated in
this Section 5.10.
SECTION 5.10.1. BYLAWS. The Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust providing for the conduct of the
business and affairs of the Trust and may amend and repeal them to the extent
that such By-Laws do not reserve that right to the Shareholders.
SECTION 5.10.2. OFFICERS, AGENTS, AND EMPLOYEES. The Trustees
may, as they consider appropriate, elect and remove officers and appoint and
terminate agents and consultants and hire and terminate employees, any one or
more of the foregoing of whom may be a Trustee, and may provide for the
compensation of all of the foregoing.
SECTION 5.10.3. COMMITTEES.
SECTION 5.10.3.1. GENERALLY. The Trustees, by vote
of a majority of the Trustees then in office, may elect from their number an
Audit Committee, Executive Committee, Nominating Committee, or any other
committee, and may delegate thereto some or all of their powers except those
which by law, by this Declaration of Trust, or by the Bylaws may not be
delegated. Except as the Trustees may otherwise determine, any such committee
may make rules for the conduct of its business, but unless otherwise provided by
the Trustees or in such rules, its business shall be conducted so far as
possible in the same manner as is provided by this Declaration of Trust or the
Bylaws of the Trust for the Trustees themselves. All members of such committees
shall hold such offices at the pleasure of the Trustees. The Trustees may
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abolish any committee at any time. Any committee to which the Trustees delegate
any of their powers or duties shall keep records of its meetings and shall
report its actions to the Trustees. The Trustees shall have power to rescind any
action of any committee, but no such rescission shall have retroactive effect.
SECTION 5.10.3.2. EXECUTIVE COMMITTEE. The
Executive Committee, if there shall be one, shall have all of the powers and
authority of the Trustees that may lawfully be exercised by an executive
committee, except the power to: (i) declare dividends or distributions on
Shares; (ii) issue Shares; (iii) recommend to the Shareholders any action which
requires the Shareholders' approval; or (iv) approve any merger, reorganization,
or share exchange which does not require Shareholder approval. Notwithstanding
the foregoing, the Trustees may limit the powers and authority of the Executive
Committee at any time.
SECTION 5.10.4. ADVISERS, ADMINISTRATORS, DEPOSITORIES, AND
CUSTODIANS. The Trustees may, in accordance with Article 6, employ one or more
advisers, administrators, depositories, custodians, and other persons and may
authorize any depository or custodian to employ subcustodians or agents and to
deposit all or any part of such assets in a system or systems for the central
handling of securities and debt instruments, retain transfer, dividend,
accounting or Shareholder servicing agents or any of the foregoing, provide for
the distribution of Shares by the Trust through one or more distributors,
principal underwriters or otherwise, and set record dates or times for the
determination of Shareholders.
SECTION 5.10.5. COMPENSATION. The Trustees may compensate or
provide for the compensation of the Trustees, officers, advisers,
administrators, custodians, other agents, consultants and employees of the Trust
or the Trustees on such terms as they deem appropriate.
SECTION 5.10.6. DELEGATION OF AUTHORITY. In general, the
Trustees may delegate to any officer of the Trust, to any committee of the
Trustees and to any employee, adviser, administrator, distributor, depository,
custodian, transfer and dividend disbursing agent, or any other agent or
consultant of the Trust such authority, powers, functions and duties as they
consider desirable or appropriate for the conduct of the business and affairs of
the Trust, including without implied limitation, the power and authority to act
in the name of the Trust and of the Trustees, to sign documents and to act as
attorney-in-fact for the Trustees.
SECTION 5.10.7. SUSPENSION OF SALES. The Trustees shall have
the authority to suspend or terminate the sales of Shares of any Series or Class
at any time or for such periods as the Trustees may from time to time decide.
SECTION 5.11. CERTAIN ADDITIONAL POWERS. Without limiting the foregoing
and to the extent not inconsistent with the 1940 Act, other applicable law, and
the fundamental policies and limitations of the applicable Series or Class, the
Trustees shall have power and authority for and on behalf of the Trust and each
separate Series or Class as enumerated in this Section 5.11.
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SECTION 5.11.1. INVESTMENTS. The Trustees shall have the power
to invest and reinvest cash and other property, and to hold cash or other
property uninvested without in any event being bound or limited by any present
or future law or custom in regard to investments by trustees.
SECTION 5.11.2. DISPOSITION OF ASSETS. The Trustees shall have
the power to sell, exchange, lend, pledge, mortgage, hypothecate, write options
on and lease any or all of the assets of the Trust.
SECTION 5.11.3. OWNERSHIP. The Trustees shall have the power
to vote, give assent, or exercise any rights of ownership with respect to
securities or other property; and to execute and deliver proxies or powers of
attorney to such person or persons as the Trustees shall deem proper, granting
to such person or persons such power and discretion with relation to securities
or other property as the Trustees shall deem proper.
SECTION 5.11.4. SUBSCRIPTION. The Trustees shall have the
power to exercise powers and rights of subscription or otherwise which in any
manner arise out of ownership of securities.
SECTION 5.11.5. PAYMENT OF EXPENSES. The Trustees shall have
the power to pay or cause to be paid all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust or any Series or
Class thereof, or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
Trust's officers, employees, investment advisers, administrator, distributor,
principal underwriter, auditor, counsel, depository, custodian, transfer agent,
dividend disbursing agent, accounting agent, shareholder servicing agent, and
such other agents, consultants, and independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
SECTION 5.11.6. FORM OF HOLDING. The Trustees shall have the
power to hold any securities or other property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in the name
of the Trustees or of the Trust or of any Series or in the name of a custodian,
subcustodian or other depositary or a nominee or nominees or otherwise.
SECTION 5.11.7. REORGANIZATION, CONSOLIDATION, OR MERGER. The
Trustees shall have the power to consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security of which is or was held in the Trust, and to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or issuer, and
to pay calls or subscriptions with respect to any security held in the Trust.
SECTION 5.11.8. COMPROMISE. The Trustees shall have the power
to arbitrate or otherwise adjust claims in favor of or against the Trust, any
Series, or Class on any matter in controversy, including but not limited to
claims for taxes.
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SECTION 5.11.9. PARTNERSHIPS. The Trustees shall have the
power to enter into joint ventures, general or limited partnerships and any
other combinations or associations.
SECTION 5.11.10. BORROWING. The Trustees shall have the power
to borrow funds and to mortgage and pledge the assets of the Trust or any Series
or any part thereof to secure obligations arising in connection with such
borrowing, consistent with the provisions of the 1940 Act.
SECTION 5.11.11. GUARANTEES. The Trustees shall have the power
to endorse or guarantee the payment of any notes or other obligations of any
person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof; and to mortgage and pledge the Trust property (or
Series property) or any part thereof to secure any of or all such obligations.
SECTION 5.11.12. INSURANCE. The Trustees shall have the power
to purchase and pay for entirely out of Trust property such insurance as they
may deem necessary or appropriate for the conduct of the business, including,
without limitation, insurance policies insuring the assets of the Trust and
payment of distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, Trustees, officers, employees,
agents, consultants, investment advisers, managers, administrators,
distributors, principal underwriters, or independent contractors, or any
employee thereof (or any person connected therewith), of the Trust individually
against all claims and liabilities of every nature arising by reason of holding,
being or having held any such office or position, or by reason of any action
alleged to have been taken or omitted by any such person 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 such liability.
SECTION 5.11.13. PENSIONS. The Trustees shall have the power
to pay pensions for faithful service, as deemed appropriate by the Trustees, and
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 such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust.
SECTION 5.12. MEETINGS AND VOTE OF TRUSTEES.
SECTION 5.12.1. REGULAR MEETINGS. The Trustees from time to
time may provide for the holding of regular meetings of the Trustees and fix
their time and place.
SECTION 5.12.2. SPECIAL MEETINGS. Special meetings of the
Trustees may be called by the President of the Trust on twenty-four (24) hours
notice to each Trustee, either personally, by mail, by telegram, or by facsimile
transmission. Special meetings shall be called
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by the President or Secretary in like manner and on like notice on the written
request of a majority of the Trustees then in office or a majority of the
members of any executive (or comparable) committee of the Trustees.
SECTION 5.12.3. TELEPHONIC MEETINGS. Trustees may participate
in a meeting of the Trustees by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time. Except to the extent that the 1940
Act has been interpreted otherwise, participation by such means shall constitute
presence in person at the meeting.
SECTION 5.12.4. QUORUM. A majority of the Trustees then in
office being present in person or by proxy shall constitute a quorum.
SECTION 5.12.5. REQUIRED VOTE. Except as otherwise provided by
the 1940 Act or other applicable law, this Declaration of Trust, or the By-Laws,
any action to be taken by the Trustees on behalf of the Trust or any Series or
Class may be taken by a majority of the Trustees present at a meeting of
Trustees at which a quorum is present.
SECTION 5.12.6. CONSENT IN LIEU OF A MEETING. Except as
otherwise provided by the 1940 Act or other applicable law, the Trustees may, by
unanimous written consent of the Trustees then in office, take any action which
may have been taken at a meeting of the Trustees or any committee thereof.
ARTICLE 6
SERVICE PROVIDERS
SECTION 6.1. INVESTMENT ADVISER. The Trust may enter into written
contracts with one or more persons to act as investment adviser or investment
subadviser to each of the Series, and as such, to perform such functions as the
Trustees may deem reasonable and proper, including, without limitation,
investment advisory, management, research, valuation of assets, clerical and
administrative functions, under such terms and conditions, and for such
compensation, as the Trustees may in their discretion deem advisable.
SECTION 6.2. UNDERWRITER AND TRANSFER AGENT. The Trust may enter into
written contracts with one or more persons to act as principal underwriter or
underwriter or distributor whereby the Trust may either agree to sell Shares to
the other party or parties to the contract or appoint such other party or
parties its sales agent or agents for such Shares and with such other provisions
as the Trustees may deem reasonable and proper, and the Trustees may in their
discretion from time to time enter into transfer agency, dividend disbursement,
and/or shareholder service contract(s), in each case with such terms and
conditions, and providing for such compensation, as the Trustees may in their
discretion deem advisable.
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SECTION 6.3. CUSTODIANS. The Trust may enter into written contracts
with one or more persons to act as custodian to perform such functions as the
Trustees may deem reasonable and proper, under such terms and conditions, and
for such compensation, as the Trustees may in their discretion deem advisable.
Each such custodian shall be a bank or trust company having an aggregate
capital, surplus, and undivided profits of at least two million dollars
($2,000,000).
SECTION 6.4. ADMINISTRATOR. The Trust may enter into written contracts
with one or more persons to act as an administrator to perform such functions,
including accounting functions, as the Trustees may deem reasonable and proper,
under such terms and conditions, and for such compensation, as the Trustees may
in their discretion deem advisable.
SECTION 6.5. OTHER CONTRACTS. The Trust may enter into such other
written contracts as the Trustees deem necessary and desirable, including
contracts with one or more persons for the coordination or supervision of
persons providing services to the Trust under one or more of the contracts
described in Sections 6.1, 6.2, 6.3, and 6.4.
SECTION 6.6. PARTIES TO CONTRACTS. Any contract of the character
described in Sections 6.1, 6.2, 6.3, and 6.4 or in Article 8 hereof may be
entered into with any corporation, firm, partnership, trust or association,
including, without limitation, the investment adviser, any investment
subadviser, or any affiliated person of the investment adviser or investment
subadviser, although one or more of the Trustees or officers of the Trust may be
an officer, director, trustee, shareholder, or member of such other party to the
contract, or may otherwise be interested in such contract, and no such contract
shall be invalidated or rendered voidable by reason of the existence of any such
relationship, nor shall any person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of said contract or be accountable for any profit realized directly or
indirectly therefrom; PROVIDED, HOWEVER, that the contract when entered into was
not inconsistent with the provisions of this Article 6, Article 8, or the
Bylaws. The same person (including a firm, corporation, partnership, trust or
association) may provide more than one of the services identified in this
Article 6.
ARTICLE 7
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1. VOTING POWERS. The Shareholders shall have power to vote
only with respect to matters expressly enumerated in Section 7.1.1 or with
respect to such additional matters relating to the Trust as may be required by
the 1940 Act, this Declaration of Trust, the By-Laws, any registration statement
of the Trust with the Commission or any state, or as the Trustees may otherwise
deem necessary or desirable.
SECTION 7.1.1. MATTERS REQUIRING SHAREHOLDERS ACTION. Action by the
Shareholders shall be required as to the following matters:
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(a) The election or removal of Trustees as provided in Sections 5.4 and
5.7;
(b) The approval of a contract with a third party provider of services
as to which Shareholder approval is required by the 1940 Act;
(c) The termination or reorganization of the Trust to the extent and as
provided in Sections 9.1 and 9.2;
(d) The amendment of this Declaration of Trust to the extent and as
provided in Section 10.3; and
(e) Any court action, proceeding or claim brought or maintained
derivatively or as a class action on behalf of the Trust, any Series or Class
thereof or the Shareholders of the Trust; PROVIDED, HOWEVER, that a shareholder
of a particular Series or Class shall not be entitled to vote upon a derivative
or class action on behalf of any other Series or Class or shareholder of any
other Series or Class.
SECTION 7.1.2. SEPARATE VOTING BY SERIES AND CLASS. On any
matter submitted to a vote of the Shareholders, all Shares shall be voted
separately by individual Series, except: (i) when required by the 1940 Act,
Shares shall be voted in the aggregate and not by individual Series or Class;
and (ii) when the Trustees have determined that the matter affects the interests
of more than one Series, then the Shareholders of all such Series shall be
entitled to vote thereon. The Trustees may also determine that a matter affects
only the interests of one or more Classes within a Series, in which case any
such matter shall only be voted on by such Class or Classes.
SECTION 7.1.3. NUMBER OF VOTES. On any matter submitted to a
vote of the Shareholders, each Shareholder shall be entitled to one vote for
each dollar of net asset value standing in such Shareholder's name on the books
of each Series and Class in which such Shareholder owns Shares which are
entitled to vote on the matter.
SECTION 7.1.4. CUMULATIVE VOTING. There shall be no cumulative
voting in the election of Trustees.
SECTION 7.1.5. VOTING OF SHARES; PROXIES. Votes may be cast in
person or by 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 the invalidity of a proxy shall rest on the
challenger. No proxy shall be valid more than eleven months after its date,
unless it provides for a longer period.
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SECTION 7.1.6. ACTIONS PRIOR TO THE ISSUANCE OF SHARES. Until
Shares are issued, the Trustees may exercise all rights of Shareholders and may
take any action required by law, this Declaration of Trust or the Bylaws to be
taken by Shareholders.
SECTION 7.2. MEETINGS OF SHAREHOLDERS.
SECTION 7.2.1. ANNUAL OR REGULAR MEETINGS. No annual or
regular meetings of Shareholders are required to be held.
SECTION 7.2.2. SPECIAL MEETINGS. Special meetings of
Shareholders may be called by the President of the Trust or the Trustees from
time to time for the purpose of taking action upon any matter requiring the vote
or authority of the Shareholders as herein provided or upon any other matter
upon which Shareholder approval is deemed by the Trustees to be necessary or
desirable. A special meeting shall be called by the Secretary of the Trust upon
(i) the request of a majority of the Trustees then in office, or (ii) the
written request of Shareholders entitled to cast at least ten percent (10%) of
all the votes entitled to be cast at such meeting, provided that (a) such
request shall state the purpose or purposes of the meeting and the matters
proposed to be acted upon at such meeting, and (b) the Shareholders requesting
such meeting shall have paid to the Trust the reasonably estimated cost of
preparing and mailing the notice thereof, which the Secretary shall determine
and specify to such Shareholders. Upon payment of these costs to the Trust, the
Secretary shall notify each Shareholder entitled to notice of the meeting.
Unless requested by Shareholders entitled to cast at least a majority of all the
votes entitled to be cast at such meeting, a special meeting need not be called
to consider any matter which is substantially the same as a matter voted on at
any special meeting of Shareholders held during the preceding twelve (12)
months.
SECTION 7.2.3. NOTICE OF MEETINGS. Written notice of any
meeting of Shareholders shall be given or caused to be given by the Trustees by
mailing or transmitting such notice not less than ten (10) nor more than ninety
(90) days before such meeting, postage prepaid, stating the time, place and
purpose of the meeting, to each Shareholder at the Shareholder's address as it
appears on the records of the Trust.
SECTION 7.2.4. CALL OF MEETINGS. The Trustees shall promptly
call and give notice of a meeting of Shareholders for the purpose of voting upon
removal of any Trustee of the Trust when requested to do so in accordance with
Section 7.2.2. For all other matters, the Trustees shall call or give notice of
a meeting within thirty (30) days after written application by Shareholders
entitled to cast at least ten percent (10%) of all the votes entitled to be cast
on the matter requesting a meeting be called.
SECTION 7.3. RECORD DATES. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution, or
for the purpose of any other action, the Trustees may from time to time fix a
date and time not more than ninety (90) days nor less than ten (10)
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days prior to any meeting of Shareholders or other action as the date and time
of record for the determination of Shareholders entitled to vote at such meeting
or any adjournment thereof or to be treated as Shareholders of record for
purposes of such other action. Any Shareholder who was a Shareholder at the date
and time so fixed shall be entitled to vote at such meeting or any adjournment
thereof or to be treated as a Shareholder of record for purposes of such other
action, even though such Shareholder has since that date and time disposed of
its Shares, and no Shareholder becoming such after that date and time shall be
so entitled to vote at such meeting or any adjournment thereof or to be treated
as a Shareholder of record for purposes of such other action.
SECTION 7.4. QUORUM. Except as otherwise required by the 1940 Act or
other applicable law, this Declaration of Trust, or the By-Laws, the presence in
person or by proxy of Shareholders entitled to cast at least thirty percent
(30%) of the votes entitled to be cast on any particular matter shall be a
quorum as to such matter; PROVIDED, HOWEVER, that any lesser number shall be
sufficient for matters upon which the Shareholders vote at adjournments.
SECTION 7.5. REQUIRED VOTE. Notwithstanding any provision of law
requiring the authorization of any matter by a greater proportion, any matter
upon which the Shareholders vote shall be approved by the affirmative vote of a
majority of the votes cast on such matter at a meeting of the Shareholders at
which a quorum is present, except that Trustees shall be elected by the
affirmative vote of a plurality of the votes cast at such a meeting.
SECTION 7.6. ADJOURNMENTS. Adjourned meetings may be held within a
reasonable time after the date set for the original meeting without the
necessity of further notice.
SECTION 7.7. ACTIONS BY WRITTEN CONSENT. Except as otherwise required
by the 1940 Act or other applicable law, this Declaration of Trust, or the
By-Laws, any action taken by Shareholders may be taken without a meeting if
Shareholders entitled to cast at least a majority of all the votes entitled to
be cast on the matter (or such larger proportion thereof as shall be required by
the 1940 Act or by any express provision of this Declaration of Trust or the
By-Laws) consent to the action in writing and such written consents are filed
with the records of the meetings of Shareholders. Such consent shall be treated
for all purposes as a vote taken at a meeting of Shareholders.
SECTION 7.8. INSPECTION OF RECORDS. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is required for
stockholders of a Delaware business corporation under the Delaware General
Corporation Law.
SECTION 7.9. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
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ARTICLE 8
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 8.1. GENERAL PROVISIONS.
SECTION 8.1.1. GENERAL LIMITATION OF LIABILITY. No personal
liability for any debt or obligation of the Trust shall attach to any Trustee of
the Trust. Without limiting the foregoing, a Trustee shall not be responsible
for or liable in any event for any neglect or wrongdoing of any officer, agent,
employee, investment adviser, subadviser, principal underwriter or custodian of
the Trust, nor shall any Trustee be responsible or liable for the act or
omission of any other Trustee. Every note, bond, contract, instrument,
certificate, Share or undertaking and every other act or thing whatsoever
executed or done by or on behalf of the Trust or the Trustees or any Trustee in
connection with the Trust shall be conclusively deemed to have been executed or
done only in or with respect to their or his or her capacity as Trustees or
Trustee and neither such Trustees or Trustee nor the Shareholders shall be
personally liable thereon.
SECTION 8.1.2. NOTICE OF LIMITED LIABILITY. Every note, bond,
contract, instrument, certificate or undertaking made or issued by the Trustees
or by any officers or officer shall recite that the same was executed or made by
or on behalf of the Trust by them as Trustees or Trustee or as officers or
officer and not individually and that the obligations of such instrument are not
binding upon any of them or the Shareholders individually but are binding only
upon the assets and property of the Trust or belonging to a Series thereof, and
may contain such further recitals as they or he may deem appropriate, but the
omission thereof shall not operate to bind any Trustees or Trustee or officers
or officer or Shareholders or Shareholder individually.
SECTION 8.1.3. LIABILITY LIMITED TO ASSETS OF THE TRUST. All
persons extending credit to, contracting with or having any claim against the
Trust shall look only to the assets of the Trust or belonging to a Series
thereof, as appropriate, for payment under such credit, contract or claim, and
neither the Shareholders nor the Trustees nor any of the Trust's officers,
employees or agents, whether past, present or future, shall be personally liable
therefor.
SECTION 8.2. LIABILITY OF TRUSTEES. The exercise by the Trustees of
their powers and discretion hereunder shall be binding upon the Trust, the
Shareholders, and any other person dealing with the Trust. The liability of the
Trustees, however, shall be limited by this Section 8.2.
SECTION 8.2.1. LIABILITY FOR OWN ACTIONS. A Trustee shall be
liable to the Trust or the Shareholders only for his own willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties involved in the
conduct of the office of Trustee, and for nothing else, and shall not be liable
for errors of judgment or mistakes of fact or law.
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SECTION 8.2.2. LIABILITY FOR ACTIONS OF OTHERS. The Trustees
shall not be responsible or liable in any event for any neglect or wrongdoing of
any officer, agent, employee, consultant, adviser, administrative distributor,
principal underwriter, custodian, transfer agent, dividend disbursing agent,
Shareholder servicing agent, or accounting agent of the Trust, nor shall any
Trustee be responsible for any act or omission of any other Trustee.
SECTION 8.2.3. ADVICE OF EXPERTS AND REPORTS OF OTHERS. The
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration of Trust and their duties as Trustees
hereunder, and shall be under no liability for any act or omission in accordance
with such advice or for failing to follow such advice. In discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely upon
the books of account of the Trust and upon written reports made to the Trustees
by any officer appointed by them, any independent public accountant and (with
respect to the subject matter of the contract involved) any officer, partner or
responsible employee of any other party to any contract entered into hereunder.
SECTION 8.2.4. BOND. The Trustees shall not be required to
give any bond as such, nor any surety if a bond is required.
SECTION 8.2.5. DECLARATION OF TRUST GOVERNS ISSUES OF
LIABILITY. The provisions of this Declaration of Trust, to the extent that they
restrict the duties and liabilities of the Trustees otherwise existing at law or
in equity, are agreed by the Shareholders and all other Persons bound by this
Declaration of Trust to replace such other duties and liabilities of the
Trustees.
SECTION 8.3. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No
person dealing with the Trustees shall be bound to make any inquiry concerning
the validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
SECTION 8.4. LIABILITY OF SHAREHOLDERS. Without limiting the provisions
of this Section 8.4 or the DBTA, the Shareholders shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations organized for profit under the General Corporation Law of the State
of Delaware.
SECTION 8.4.1. LIMITATION OF LIABILITY. No personal liability
for any debt or obligation of the Trust shall attach to any Shareholder or
former Shareholder of the Trust, and neither the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind any Shareholder
personally or 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 any Shares or otherwise.
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SECTION 8.4.2. INDEMNIFICATION OF SHAREHOLDERS. In case any
Shareholder or former Shareholder of the Trust shall be held to be personally
liable solely by reason of being or having been a Shareholder and not because of
such Shareholder's acts or omissions or for some other reason, the Shareholder
or former Shareholder (or, in the case of a natural person, 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 of the Trust to be held harmless from and indemnified
against all loss and expense arising from such liability; PROVIDED, HOWEVER,
there shall be no liability or obligation of the Trust arising hereunder to
reimburse any Shareholder for taxes paid by reason of such Shareholder's
ownership of any Shares or for losses suffered by reason of any changes in value
of any Trust assets. The Trust shall, upon request by the Shareholder or former
Shareholder, assume the defense of any claim made against the Shareholder for
any act or obligation of the Trust and satisfy any judgment thereon.
SECTION 8.5. INDEMNIFICATION.
SECTION 8.5.1. INDEMNIFICATION OF COVERED PERSONS. Subject to
the exceptions and limitations contained in Section 8.5.2, every person who is,
or has been, a Trustee, officer, employee or agent of the Trust, including
persons who serve at the request of the Trust as directors, trustees, officers,
employees or agents 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 in connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been such a
Trustee, director, officer, employee or agent and against amounts paid or
incurred by him in settlement thereof.
SECTION 8.5.2. EXCEPTIONS. No indemnification shall be
provided hereunder to a Covered Person:
(a) For any liability to the Trust or its Shareholders arising out of a
final adjudication by the court or other body before which the proceeding was
brought that the Covered Person engaged in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office;
(b) With respect to any matter as to which the Covered Person shall
have been finally adjudicated not to have acted in good faith in the reasonable
belief that his or her action was in the best interests 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) of this Section 8.5.2)
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
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conduct of his office by the court or other body approving the settlement or
other disposition, or a reasonable determination, based on a review of 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 (as such term is defined in Section
8.5.5) acting on the matter (provided that a majority of Disinterested Trustees
then in office act on the matter); or (ii) a written opinion of independent
legal counsel.
SECTION 8.5.3. RIGHTS OF INDEMNIFICATION. The rights of
indemnification herein provided may be insured against by policies maintained by
the Trust, and shall be severable, shall not affect any other rights to which
any Covered Person may now or hereafter be entitled, shall continue as to a
person who has 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.
SECTION 8.5.4. EXPENSES OF INDEMNIFICATION. Expenses of
preparation and presentation of a defense to any claim, action, suit or
proceeding subject to a claim for indemnification under this Section 8.5 shall
be advanced by the Trust prior to final disposition thereof upon receipt of an
undertaking by or on behalf of the recipient to repay such amount if it is
ultimately determined that he or she is not entitled to indemnification under
this Section 8.5, provided that either:
(a) Such undertaking is secured by a surety bond or some other
appropriate security 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 upon a review of the readily available facts (as opposed to the facts
available upon a full trial), that there is reason to believe that the recipient
ultimately will be found entitled to indemnification.
SECTION 8.5.5. CERTAIN DEFINED TERMS RELATING TO
INDEMNIFICATION. As used in this Section 8.5, the following words shall have the
meanings set forth below:
(a) A "Disinterested Trustee" is one (i) who is not an Interested
Person of the Trust (including anyone, as such Disinterested Trustee, 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 actions, suits or other
proceedings or another action, suit or other proceeding on the same or similar
grounds is then or has been pending;
(b) "Claim," "action," "suit" or "proceeding" shall apply to all
claims, actions, suits, proceedings (civil, criminal, administrative or other,
including appeals), actual or threatened; and
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(c) "Liability" and "expenses" shall include without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement, fines, penalties
and other liabilities.
ARTICLE 9
TERMINATION OR REORGANIZATION
SECTION 9.1. TERMINATION OF TRUST OR SERIES. Unless terminated as
provided herein, the Trust and each Series designated and established pursuant
to this Declaration of Trust shall continue without limitation of time.
SECTION 9.1.1. TERMINATION. Subject to approval by the
affected Shareholders, the Trust, any Series, or any Class (and the
establishment and designation thereof) may be terminated by an instrument
executed by a majority of the Trustees then in office; PROVIDED, HOWEVER, that
no approval of affected Shareholders is necessary if a majority of the trustees
then in office determines that the continuation of the Trust, Series, or Class
is not in the best interests of the Trust, such Series, such Class, or the
affected Shareholders as a result of factors or events adversely affecting the
ability of the Trust, Series, or Class to conduct its business and operations in
an economically viable manner.
SECTION 9.1.2. DISTRIBUTION OF ASSETS. Upon termination of the
Trust or any Series or Class, after paying or otherwise providing for all
charges, taxes, expenses and liabilities, whether due or accrued or anticipated,
as may be determined by the Trustees, the Trust shall, in accordance with such
procedures as the Trustees consider appropriate, reduce the remaining assets of
the Trust to distributable form in cash or other securities, or any combination
thereof, and distribute the proceeds to the affected Shareholders in the manner
set forth by resolution of the Trustees. To the extent permitted by the 1940 Act
or other applicable law, the Trustees may require affected Shareholders to
receive Shares of any remaining Series or Class in lieu of such proceeds.
SECTION 9.1.3. CERTIFICATE OF CANCELLATION. Upon termination
of the Trust, the Trustees shall file a certificate of cancellation in
accordance with Section 3810 of the DBTA.
SECTION 9.2. REORGANIZATION. The Trustees may sell, convey, and
transfer the assets of the Trust, or the assets belonging to any one or more
Series, to another trust, partnership, association or corporation organized
under the laws of any state of the United States, or to the Trust to be held as
assets belonging to another Series of the Trust, in exchange for cash, shares or
other securities (including, in the case of a transfer to another Series of the
Trust, Shares corresponding to such other Series) with such transfer either (i)
being made subject to, or with the assumption by the transferee of, the
liabilities belonging to each Series the assets of which are so transferred, or
(ii) not being made subject to, or not with the assumption of, such liabilities.
Following such transfer, the Trustees shall distribute such cash, Shares or
other securities (giving due effect to the assets and liabilities belonging to
and any other differences
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among the various Series the assets belonging to which have so been transferred)
among the Shareholders of the Series corresponding to the Series the assets
belonging to which have been so transferred. If all of the assets of the Trust
have been so transferred, the Trust shall be terminated.
SECTION 9.3. MERGER OR CONSOLIDATION.
SECTION 9.3.1. AUTHORITY TO MERGE OR CONSOLIDATE. The Trust,
or any one or more Series, may, either as the successor, survivor, or
non-survivor, (i) consolidate with one or more other trusts, partnerships,
associations or corporations organized under the laws of the State of Delaware
or any other state of the United States, to form a new consolidated trust,
partnership, association or corporation under the laws under which any one of
the constituent entities is organized, or (ii) merge into one or more other
trusts, partnerships, associations or corporations organized under the laws of
the State of Delaware or any other state of the United States, or have one or
more such trusts, partnerships, associations or corporations 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 one or more Series as the case may be, in connection therewith. The terms
"merge" or "merger" as used herein shall also include the purchase or
acquisition of any assets of any other trust, partnership, association or
corporation which is an investment company organized under the laws of the State
of Delaware or any other state of the United States.
SECTION 9.3.2. NO SHAREHOLDER APPROVAL REQUIRED. Any such
consolidation or merger shall not require the vote of the Shareholders affected
thereby, unless such vote is required by the 1940 Act or other applicable laws,
or unless such merger or consolidation would result in an amendment of this
Declaration of Trust which would otherwise require the approval of such
Shareholders.
SECTION 9.3.3. SUBSEQUENT AMENDMENTS. In accordance with
Section 3815(f) of DBTA, an agreement of merger or consolidation 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 the Trust if the Trust is the surviving
or resulting business trust.
SECTION 9.3.4. CERTIFICATE OF MERGER OR CONSOLIDATION. Upon
completion of the merger or consolidation, the Trustees shall file a certificate
of merger or consolidation in accordance with Section 3815(b) of the DBTA.
ARTICLE 10
AMENDMENTS
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SECTION 10.1. GENERALLY. Except as otherwise specifically provided
herein or as required by the 1940 Act or other applicable law, this Declaration
of Trust may be amended at any time by an instrument in writing signed by a
majority of the Trustees then in office.
SECTION 10.2. CERTIFICATE OF AMENDMENT. In the event of any amendment
to this Declaration of Trust which affects the certificate of trust filed by the
Trust in accordance with Section 2.1, the Trustees shall file a certificate of
amendment in accordance with Section 3810(b) of the DBTA.
SECTION 10.3. PROHIBITED RETROSPECTIVE AMENDMENTS. No amendment of this
Declaration of Trust or repeal of any of its provisions shall limit or eliminate
the limitation of liability provided to Trustees and officers hereunder with
respect to any act or omission occurring prior to such amendment or repeal.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.1. CERTIFIED COPIES. The original or a copy of this
Declaration of Trust and of each amendment hereto shall be kept in the office of
the Trust where it may be inspected by any Shareholder. Anyone dealing with the
Trust may rely on a certificate by an officer or Trustee of the Trust as to
whether or not any such amendments have been made and as to any matters in
connection with the Trust hereunder, and with the same effect as if it were the
original, may rely on a copy certified by an officer or Trustee of the Trust to
be a copy of this Declaration of Trust or of any such amendments.
SECTION 11.2. CERTAIN INTERNAL REFERENCES. In this Declaration of Trust
or in any such amendment, references to this Declaration of Trust, and all
expressions like "herein," "hereof" and "hereunder," shall be deemed to refer to
this Declaration of Trust as a whole and as amended or affected by any such
amendment.
SECTION 11.3. HEADINGS. Headings are placed herein for convenience of
reference only, and in case of any conflict, the text of this instrument, rather
than the headings, shall control. This instrument may be executed in any number
of counterparts, each of which shall be deemed an original.
SECTION 11.4. RESOLUTION OF AMBIGUITIES. The Trustees may construe any
of the provisions of this Declaration insofar as the same may appear to be
ambiguous or inconsistent with any other provisions hereof, and any such
construction hereof by the Trustees in good faith shall be conclusive as to the
meaning to be given to such provisions. In construing this Declaration, the
presumption shall be in favor of a grant of power to the Trustees.
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SECTION 11.5. SIGNATURES. To the extent permitted by applicable law,
any instrument signed pursuant to a validly executed power of attorney shall be
deemed to have been signed by the Trustee or officer executing the power of
attorney.
SECTION 11.6. GOVERNING LAW. This Declaration of Trust is executed and
delivered with reference to DBTA and the laws of the State of Delaware by all of
the Trustees whose signatures appear below, and the rights of all parties and
the validity and construction of every provision hereof shall be subject to and
construed according to DBTA and the laws of the State of Delaware (unless and to
the extent otherwise provided for and/or preempted by the 1940 Act or other
applicable federal securities laws); PROVIDED, HOWEVER, that there shall not be
applicable to the Trust, the Trustees, or this Declaration 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 DBTA) pertaining to trusts which are inconsistent with the rights,
duties, powers, limitations or liabilities of the Trustees set forth or
referenced in this Declaration of Trust. All references to sections of the DBTA
or the 1940 Act, or any rules or regulations thereunder, refer to such sections,
rules, or regulations in effect as of the date of this Declaration of Trust, or
any successor sections, rules, or regulations thereto.
SECTION 11.7. SEVERABILITY. The provisions of this Declaration of Trust
are severable, and if the Trustees shall determine, with the advice of counsel,
that any of such provision is in conflict with the 1940 Act, the DBTA, or with
other applicable laws and regulations, the conflicting provision shall be deemed
never to have constituted a part of this Declaration of Trust; PROVIDED,
HOWEVER, that such determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination. If any provision of this
Declaration of Trust shall be held invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in any other
jurisdiction or any other provision of this Declaration of Trust in any
jurisdiction.
IN WITNESS WHEREOF, the undersigned, being the Trustees of the Trust,
have executed this Declaration of Trust as of the date first written above.
/s/ David R Grimes , Trustee
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