DECLARATION OF TRUST
OF
EVEREST SERIES FUNDS TRUST
A Delaware Business Trust
August 11, 2000
DECLARATION OF TRUST
OF
EVEREST SERIES FUNDS TRUST
TABLE OF CONTENTS
PAGE
ARTICLE I THE TRUST............................................................1
1.1 NAME....................................................................1
1.2 TRUST PURPOSE...........................................................1
1.3 DEFINITIONS.............................................................2
ARTICLE II TRUSTEES............................................................3
2.1 NUMBER AND QUALIFICATION................................................3
2.2 TERM AND ELECTION.......................................................4
2.3 RESIGNATION AND REMOVAL.................................................4
2.4 VACANCIES...............................................................4
2.5 MEETINGS................................................................5
2.6 OFFICERS; CHAIRPERSON OF THE BOARD......................................6
2.7 BY-LAWS.................................................................6
ARTICLE III POWERS OF TRUSTEES.................................................6
3.1 GENERAL.................................................................6
3.2 INVESTMENTS.............................................................6
3.3 LEGAL TITLE.............................................................7
3.4 SALE OF INTERESTS.......................................................7
3.5 BORROW MONEY............................................................7
3.6 DELEGATION; COMMITTEE...................................................7
3.7 COLLECTION AND PAYMENT..................................................8
3.8 EXPENSES................................................................8
3.9 MISCELLANEOUS POWERS....................................................8
3.10 FURTHER POWERS..........................................................8
ARTICLE IV INVESTMENT ADVISORY, ADMINISTRATIVE, AND PLACEMENT AGENT SERVICES...9
4.1 INVESTMENT ADVISORY AND OTHER SERVICES..................................9
4.2 PARTIES TO CONTRACT.....................................................9
ARTICLE V LIMITATIONS OF LIABILITY............................................10
5.1 NO PERSONAL LIABILITY OF TRUSTEES, OFFICERS, EMPLOYEES OR AGENTS.......10
5.2 INDEMNIFICATION OF TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS............10
5.3 LIABILITY OF HOLDERS; INDEMNIFICATION..................................11
5.4 NO BOND REQUIRED OF TRUSTEES...........................................11
5.5 NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC.............11
5.6 RELIANCE ON EXPERTS, ETC...............................................11
5.7 ASSENT TO DECLARATION..................................................12
ARTICLE VI INTERESTS IN THE TRUST.............................................12
6.1 GENERAL CHARACTERISTICS................................................12
6.2 ESTABLISHMENT OF SERIES OF INTERESTS...................................12
6.3 ESTABLISHMENT OF CLASSES...............................................13
6.4 ASSETS OF SERIES.......................................................13
6.5 LIABILITIES OF SERIES..................................................14
6.6 DIVIDENDS AND DISTRIBUTIONS............................................14
6.7 VOTING RIGHTS..........................................................15
6.8 RECORD DATES...........................................................15
6.9 TRANSFER...............................................................15
6.10 EQUALITY...............................................................15
6.11 FRACTIONS..............................................................16
6.12 CLASS DIFFERENCES......................................................16
6.13 CONVERSION OF INTERESTS................................................16
6.14 INVESTMENTS IN THE TRUST...............................................16
6.15 TRUSTEES AND OFFICERS AS HOLDERS.......................................16
6.16 NO PREEMPTIVE RIGHTS; DERIVATIVE SUITS.................................16
6.17 NO APPRAISAL RIGHTS....................................................17
6.18 STATUS OF INTERESTS AND LIMITATION OF PERSONAL LIABILITY...............17
ARTICLE VII PURCHASES AND REDEMPTIONS.........................................17
7.1 PURCHASES..............................................................17
7.2 REDEMPTION BY HOLDER...................................................17
7.3 REDEMPTION BY TRUST....................................................18
7.4 NET ASSET VALUE........................................................18
ARTICLE VIII HOLDERS..........................................................19
8.1 RIGHTS OF HOLDERS......................................................19
8.2 REGISTER OF INTERESTS..................................................19
8.3 NOTICES................................................................19
8.4 MEETINGS OF HOLDERS....................................................19
8.5 NOTICE OF MEETINGS.....................................................20
8.6 RECORD DATE............................................................20
8.7 PROXIES, ETC...........................................................20
8.8 REPORTS................................................................21
8.9 INSPECTION OF RECORDS..................................................21
8.10 VOTING POWERS..........................................................21
8.11 HOLDER ACTION BY WRITTEN CONSENT.......................................21
8.12 HOLDER COMMUNICATIONS..................................................21
ARTICLE IX Duration; Termination of Trust;AMENDMENT; MERGERS; ETC.............22
9.1 DURATION...............................................................22
9.2 TERMINATION OF TRUST...................................................22
9.3 AMENDMENT PROCEDURE....................................................23
9.4 MERGER, CONSOLIDATION AND SALE OF ASSETS...............................24
9.5 INCORPORATION..........................................................24
ARTICLE X MISCELLANEOUS.......................................................24
10.1 CERTIFICATE OF DESIGNATION; AGENT FOR SERVICE OF PROCESS...............24
10.2 GOVERNING LAW..........................................................25
10.3 COUNTERPARTS...........................................................25
10.4 RELIANCE BY THIRD PARTIES..............................................25
10.5 PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.........................25
10.6 TRUST ONLY.............................................................26
10.7 WITHHOLDING............................................................26
10.8 HEADINGS AND CONSTRUCTION..............................................26
DECLARATION OF TRUST
OF
EVEREST SERIES FUNDS TRUST
This DECLARATION OF TRUST OF EVEREST SERIES FUNDS TRUST is
made on the 11th day of August, 2000 by the party signatory hereto, as Trustee.
WHEREAS, the Trustee desires to form a business trust under
the law of Delaware for the investment and reinvestment of its assets; and
WHEREAS, it is proposed that the Trust assets be composed of
cash, securities and other assets contributed to the Trust by the Holders of
Interests in the Trust entitled to ownership rights in the Trust;
NOW, THEREFORE, the Trustee hereby declares that the Trustees
will hold in trust all cash, securities and other assets which they may from
time to time acquire in any manner as Trustees hereunder, and manage and dispose
of the same for the benefit of the Holders of Interests in the Trust, and
subject to the following terms and conditions.
ARTICLE I
THE TRUST
1.1 NAME. The name of the Trust created hereby (the "Trust")
shall be "Everest Series Funds Trust," and so far as may be practicable the
Trustees shall conduct the Trust's activities, execute all documents and sue or
be sued under that name, which name (and the word "Trust" wherever hereinafter
used) shall not refer to the Trustees in their individual capacities or to the
officers, agents, employees or Holders of Interest in the Trust. However, should
the Trustees determine that the use of the name of the Trust is not advisable,
they may select such other name for the Trust as they deem proper and the Trust
may hold its property and conduct its activities under such other name. Any name
change shall become effective upon the execution by a majority of the then
Trustees of an instrument setting forth the new name and the filing of a
certificate of amendment pursuant to Section 3810(b) of the DBTA. Any such
instrument shall not require the approval of the Holders of Interests in the
Trust, but shall have the status of an amendment to this Declaration.
1.2 TRUST PURPOSE. The purpose of the Trust is to conduct,
operate and carry on the business of an open-end management investment company
registered under the 1940 Act. In furtherance of the foregoing, it shall be the
purpose of the Trust to do everything necessary, suitable, convenient or proper
for the conduct, promotion and attainment of any businesses and purposes which
at any time may be incidental or may appear conducive or expedient for the
accomplishment of the business of an open-end management investment company
registered under the 1940 Act and which may be engaged in or carried on by a
trust organized under the DBTA, and in connection therewith, the Trust shall
have and may exercise all of the powers conferred by the laws of the State of
Delaware upon a Delaware business trust.
1.3 DEFINITIONS. As used in this Declaration, the following
terms shall have the following meanings:
(a) "1940 Act" shall mean the Investment Company Act
of 1940, as amended from time to time, and the rules and regulations thereunder,
as adopted or amended from time to time.
(b) "Affiliated Person," "Assignment" and "Interested
Person" shall have the meanings given such terms in the 1940 Act.
(c) "Administrator" shall mean any party furnishing
services to the Trust pursuant to any administrative services contract described
in Section 4.1.
(d) "By-Laws" shall mean the By-Laws of the Trust as
amended from time to time.
(e) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time, and the rules and regulations thereunder, as
adopted or amended from time to time.
(f) "Commission" shall mean the Securities and
Exchange Commission.
(g) "Declaration" shall mean this Declaration of
Trust, as amended from time to time. References in this Declaration to
"Declaration," "hereof," "herein" and "hereunder" shall be deemed to refer to
the Declaration rather than the article or section in which such words appear.
This Declaration shall, together with the By-Laws, constitute the governing
instrument of the Trust under the DBTA.
(h) "DBTA" shall mean the Delaware Business Trust
Act, Delaware Code Annotated Title 12, Sections 3801, ET SEQ., as amended from
time to time.
(i) "Fiscal Year" shall mean an annual period as
determined by the Trustees unless otherwise provided by the Code or applicable
regulations.
(j) "Holders" shall mean as of any particular time
any or all holders of record of Interests in the Trust or in Trust Property, as
the case may be, at such time.
(k) "Interest" shall mean a Holder's units of
interest into which the beneficial interest in the Trust and each series and
class of the Trust shall be divided from time to time.
(l) "Investment Advisor" shall mean any party
furnishing services to the Trust pursuant to any investment advisory contract
described in Section 4.1 hereof.
(m) "Majority Interests Vote" shall mean the vote, at
a meeting of the Holders of Interests, of the lesser of (i) 67% or more of the
Interests present or represented at such meeting, provided the Holders of more
than 50% of the Interests are present or represented by proxy or (ii) more
than 50% of the Interests.
(n) "Person" shall mean and include an individual,
corporation, partnership, trust, association, joint venture and other entity,
whether or not a legal entity, and a government and agencies and political
subdivisions thereof.
(o) "Registration Statement" as of any particular
time shall mean the Registration Statement of the Trust which is effective at
such time under the 1940 Act.
(p) "Trust Property" shall mean as of any particular
time any and all property, real or personal, tangible or intangible, which at
such time is owned or held by or for the account of the Trust or the Trustees or
any series of the Trust established in accordance with Section 6.2.
(q) "Trustees" shall mean such persons who are
indemnified as trustees of the Trust on the signature page of this Declaration,
so long as they shall continue in office in accordance with the terms of this
Declaration of Trust, and all other persons who at the time in question have
been duly elected or appointed as trustees in accordance with the provisions of
this Declaration of Trust and are then in office, in their capacity as trustees
hereunder.
ARTICLE II
TRUSTEES
2.1 NUMBER AND QUALIFICATION. The number of Trustees shall
initially be one and shall thereafter be fixed from time to time by written
instrument signed by a majority of the Trustees so fixed, then in office,
provided, however, that the number of Trustees shall in no event be less than
one. A Trustee shall be an individual at least 21 years of age who is not under
a legal disability.
(a) Any vacancy created by an increase in Trustees
shall be filled by the appointment or election of an individual having the
qualifications described in this Article as provided in Section 2.4. Any such
appointment shall not become effective, however, until the individual appointed
or elected shall have accepted in writing such appointment or election and
agreed in writing to be bound by the terms of the Declaration. No reduction in
the number of Trustees shall have the effect of removing any Trustee from
office.
(b) Whenever a vacancy in the number of Trustees
shall occur, until such vacancy is filled as provided in Section 2.4 hereof, the
Trustees in office, regardless of their number, shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Declaration.
2.2 TERM AND ELECTION. Each Trustee named herein, or elected
or appointed prior to the first meeting of the Holders, shall (except in the
event of resignations or removals or vacancies pursuant to Section 2.3 or 2.4
hereof) hold office until his or her successor has been elected at such meeting
and has qualified to serve as Trustee. Beginning with the Trustees elected at
the first meeting of Holders, each Trustee shall hold office during the lifetime
of this Trust and until its termination as hereinafter provided unless such
Trustee resigns or is removed as provided in Section 2.3 below or his term
expires pursuant to Section 2.4 hereof.
2.3 RESIGNATION AND REMOVAL. Any Trustee may resign (without
need for prior or subsequent accounting) by an instrument in writing signed by
him or her and delivered or mailed to the Chairperson, if any, the President or
the Secretary and such resignation shall be effective upon such delivery, or at
a later date according to the terms of the instrument.
(a) Any of the Trustees may be removed with or
without cause by the affirmative vote of the Holders of two-thirds (2/3) of the
Interests or (provided the aggregate number of Trustees, after such removal and
after giving effect to any appointment made to fill the vacancy created by such
removal, shall not be less than the number required by Section 2.1 hereof) with
cause, by the action of two-thirds (2/3) of the remaining Trustees, or without
cause, by the action of eighty percent (80%) of the remaining Trustees. Removal
with cause shall include, but not be limited to, the removal of a Trustee due to
physical or mental incapacity.
(b) Upon the resignation or removal of a Trustee, or
his or her otherwise ceasing to be a Trustee, he or she shall execute and
deliver such documents as the remaining Trustees shall require for the purpose
of conveying to the Trust or the remaining Trustees any Trust Property held in
the name of the resigning or removed Trustee. Upon the death of any Trustee or
upon removal or resignation due to any Trustee's incapacity to serve as trustee,
his or her legal representative shall execute and deliver on his or her behalf
such documents as the remaining Trustees shall require as provided in the
preceding sentence.
2.4 VACANCIES. The term of office of a Trustee shall terminate
and a vacancy shall occur in the event of the earliest to occur of the
following: the Trustee's death, resignation, adjudicated incompetence or other
incapacity to perform the duties of the office, or the removal of the Trustee. A
vacancy shall also occur in the event of an increase in the number of Trustees
as provided in Section 2.1. No such vacancy shall operate to annul this
Declaration or to revoke any existing trust created pursuant to the terms of
this Declaration. In the case of a vacancy, the Holders of a plurality of the
Interests entitled to vote, acting at any meeting of the Holders held in
accordance with Article VIII hereof, or, to the extent permitted by the 1940
Act, a majority vote of the Trustees continuing in office acting by written
instrument or instruments, may fill such vacancy, and any Trustee so elected by
the Trustees or the Holders shall hold office as provided in this Declaration.
There shall be no cumulative voting by the Holders in the election of Trustees.
2.5 MEETINGS. Meetings of the Trustees shall be held from time
to time within or without the State of Delaware upon the call of the
Chairperson, if any, the President, the Chief Operating Officer, the Secretary,
an Assistant Secretary or any two Trustees.
(a) Regular meetings of the Trustees may be held
without call or notice at a time and place fixed by the By-Laws or by resolution
of the Trustees. Notice of any other meeting shall be given not later than 72
hours preceding the meeting by United States mail or by electronic transmission
to each Trustee at his or her business address as set forth in the records of
the Trust or otherwise given personally not less than 24 hours before the
meeting but may be waived in writing by any Trustee either before or after such
meeting. The attendance of a Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Trustee attends a meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting has not been lawfully called or convened.
(b) A quorum for all meetings of the Trustees shall
be one-third of the total number of Trustees, but (except at such time as there
is only one Trustee) no less than two Trustees. Unless provided otherwise in
this Declaration, any action of the Trustees may be taken at a meeting by vote
of a majority of the Trustees present (a quorum being present) or without a
meeting by written consent of a majority of the Trustees, which written consent
shall be filed with the minutes of proceedings of the Trustees or any such
committee. If there be less than a quorum present at any meeting of the
Trustees, a majority of those present may adjourn the meeting until a quorum
shall have been obtained.
(c) Any committee of the Trustees, including an
executive committee, if any, may act with or without a meeting. A quorum for all
meetings of any such committee shall be two or more of the members thereof,
unless the Board shall provide otherwise. Unless provided otherwise in this
Declaration, any action of any such committee may be taken at a meeting by vote
of a majority of the members present (a quorum being present) or without a
meeting by written consent of a majority of the members, which written consent
shall be filed with the minutes of proceedings of the Trustees or any such
committee.
(d) With respect to actions of the Trustees and any
committee of the Trustees, Trustees who are Interested Persons of the Trust or
are otherwise interested in any action to be taken may be counted for quorum
purposes under this Section 2.5 and shall be entitled to vote to the extent
permitted by the 1940 Act.
(e) All or any one or more Trustees may participate
in a meeting of the Trustees or any committee thereof by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to such communications system shall constitute presence in person at
such meeting, unless the 1940 Act specifically requires the Trustees to act "in
person," in which case such term shall be construed consistent with Commission
or staff releases or interpretations.
2.6 OFFICERS; CHAIRPERSON OF THE BOARD. The Trustees shall,
from time to time, elect officers of the Trust, including a President, a
Secretary and a Treasurer. The Trustees shall elect or appoint, from time to
time, a Trustee to act as Chairperson of the Board who shall preside at all
meetings of the Trustees and carry out such other duties as the Trustees shall
designate. The Trustees may elect or appoint or authorize the President to
appoint such other officers or agents with such powers as the Trustees may deem
to be advisable. The President, Secretary and Treasurer may, but need not, be a
Trustee. The Chairperson of the Board and such officers of the Trust shall serve
in such capacity for such time and with such authority as the Trustees may, in
their discretion, so designate or as provided for in the By-Laws.
2.7 BY-LAWS. The Trustees may adopt and, from time to time,
amend or repeal the By-Laws for the conduct of the business of the Trust not
inconsistent with this Declaration, and such By-Laws are hereby incorporated in
this Declaration by reference thereto.
ARTICLE III
POWERS OF TRUSTEES
3.1 GENERAL. The Trustees shall have exclusive and absolute
control over management of the business and affairs of the Trust, but with such
powers of delegation as may be permitted by this Declaration and the DBTA. The
Trustees may perform such acts as in their sole discretion are proper for
conducting the business and affairs of the Trust. The enumeration of any
specific power herein shall not be construed as limiting the aforesaid power.
Such powers of the Trustee may be exercised without order of, or recourse to,
any court.
3.2 INVESTMENTS. The Trustees shall have power to:
(a) conduct, operate and carry on the business of an
investment company; and
(b) subscribe for, invest in, reinvest in, purchase
or otherwise acquire, hold, pledge, sell, assign, transfer, exchange, distribute
or otherwise deal in or dispose of United States and foreign currencies and
related instruments including forward contracts, and securities, including
common and preferred stock, warrants, bonds, debentures, time notes and all
other evidences of indebtedness, negotiable or non-negotiable instruments,
obligations, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, reverse repurchase agreements, convertible securities,
forward contracts, options, futures contracts, and other securities, including,
without limitation, those issued, guaranteed or sponsored by any state,
territory or possession of the United States and the District of Columbia and
their political subdivisions, agencies and instrumentalities, or by the United
States Government, any foreign government, or any agency, instrumentality or
political subdivision of the United States Government or any foreign government,
or international instrumentalities, or by any bank, savings institution,
corporation or other business entity organized under the laws of the United
States or under foreign laws; and to exercise any and all rights, powers and
privileges of ownership or interest in respect of any and all such investments
of every kind and description, including, without limitation, the right to
consent and otherwise act with respect thereto, with power to designate one or
more persons, firms, associations, or corporations to exercise any of said
rights, powers and privileges in respect of any of said instruments; and the
Trustees shall be deemed to have the foregoing powers with respect to any
additional securities in which the Trustees may determine to invest.
The Trustees shall not be limited to investing in obligations
maturing before the possible termination of the Trust, nor shall the Trustees be
limited by any law limiting the investments which may be made by fiduciaries.
3.3 LEGAL TITLE. Legal title to all the Trust Property shall
be vested in the Trust as a separate legal entity under the DBTA, except that
the Trustees shall have the power to cause legal title to any Trust Property to
be held by or in the name of one or more of the Trustees or in the name of any
other Person on behalf of the Trust on such terms as the Trustees may determine.
In the event that title to any part of the Trust Property is
vested in one or more Trustees, the right, title and interest of the Trustees in
the Trust Property shall vest automatically in each person who may hereafter
become a Trustee upon his or her due election and qualification. Upon the
resignation, removal or death of a Trustee he or she shall automatically cease
to have any right, title or interest in any of the Trust Property, and the
right, title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. To the extent permitted by law, such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
3.4 SALE OF INTERESTS. Subject to the more detailed provisions
set forth in Article VII, the Trustees shall have the power to permit persons to
purchase Interests and to add or reduce, in whole or in part, their Interest in
the Trust.
3.5 BORROW MONEY. The Trustees shall have power to borrow
money or otherwise obtain credit and to secure the same by mortgaging, pledging
or otherwise subjecting as security the assets of the Trust, including the
lending of portfolio securities, and to endorse, guarantee or undertake the
performance of any obligation, contract or engagement of any other person, firm,
association or corporation.
3.6 DELEGATION; COMMITTEE. The Trustees shall have the power,
consistent with their continuing exclusive authority over the management of the
Trust and the Trust Property, to delegate from time to time to such of their
number or to officers, employees or agents of the Trust the doing of such things
and the execution of such instruments, either in the name of the Trust or the
names of the Trustees or otherwise, as the Trustees may deem expedient.
3.7 COLLECTION AND PAYMENT. The Trustees shall have the power
to collect all property due to the Trust; to pay all claims, including taxes,
against the Trust Property; to prosecute, defend, compromise or abandon any
claims relating to the Trust Property; to foreclose any security interest
securing any obligations, by virtue of which any property is owed to the Trust;
and to enter into releases, agreements and other instruments.
3.8 EXPENSES. The Trustees shall have the power to incur and
pay any expenses which in the opinion of the Trustees are necessary or
incidental to carry out any of the purposes of this Declaration, and to pay
reasonable compensation from the funds of the Trust to themselves as Trustees.
The Trustees shall fix the compensation of all officers, employees and Trustees.
The Trustees may pay themselves such compensation for special services,
including legal and brokerage services, as they in good faith may deem
reasonable (subject to any limitations in the 1940 Act), and reimbursement for
expenses reasonably incurred by themselves on behalf of the Trust. There shall
be no retirement compensation plan for the Trustees; provided, however, that the
Trustees may adopt a deferred compensation plan consistent with industry and
regulatory standards.
3.9 MISCELLANEOUS POWERS. The Trustees shall have the power
to: (a) employ or contract with such Persons as the Trustees may deem desirable
for the transaction of the business of the Trust and terminate such employees or
contractual relationships as they consider appropriate; (b) enter into joint
ventures, partnerships and any other combinations or associations; (c) purchase,
and pay for out of Trust Property, insurance policies (including, but not
limited to, fidelity bonding and errors and omission policies) insuring the
Investment Advisor, Administrator, distributor, Holders, Trustees, officers,
employees, agents, or independent contractors of the Trust against all claims
arising by reason of holding any such position or by reason of any action taken
or omitted by any such Person in such capacity, whether or not the Trust would
have the power to indemnify such Person against liability; (d) establish
pension, profit-sharing and other retirement, incentive and benefit plans for
any officers, employees and agents of the Trust; (e) to the extent permitted by
law, indemnify any Person with whom the Trust has dealings, including the
Investment Advisor, Administrator, distributor, Holders, Trustees, officers,
employees, agents or independent contractors of the Trust, to such extent as the
Trustees shall determine; (f) guarantee indebtedness or contractual obligations
of others; (g) determine and change the Fiscal Year of the Trust and the method
by which its accounts shall be kept; and (h) adopt a seal for the Trust, but the
absence of such seal shall not impair the validity of any instrument executed on
behalf of the Trust.
3.10 FURTHER POWERS. The Trustees shall have power to conduct
the business of the Trust and carry on its operations in any and all of its
branches and maintain offices, whether within or without the State of Delaware,
in any and all states of the United States of America, in the District of
Columbia, in any foreign countries, and in any and all commonwealths,
territories, dependencies, colonies, possessions, agencies or instrumentalities
of the United States of America and of foreign countries, and to do all such
other things and execute all such instruments as they deem necessary, proper or
desirable in order to promote the interests of the Trust although such things
are not herein specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive
and shall be binding upon the Trust and the Holders, past, present and future.
In construing the provisions of this Declaration, the presumption shall be in
favor of a grant of power to the Trustees. The Trustees shall not be required to
obtain any court order to deal with Trust Property.
ARTICLE IV
INVESTMENT ADVISORY, ADMINISTRATIVE,
AND PLACEMENT AGENT SERVICES
4.1 INVESTMENT ADVISORY AND OTHER SERVICES. The Trustees may
in their discretion, from time to time, enter into contracts or agreements for
investment advisory services, administrative services (including transfer and
dividend disbursing agency services), distribution services, fiduciary
(including custodian) services, placement agent services, Holder servicing and
distribution services, or other services, whereby the other party to such
contract or agreement shall undertake to furnish the Trustees such services as
the Trustees shall, from time to time, consider desirable and all upon such
terms and conditions as the Trustees may in their discretion determine.
Notwithstanding any other provisions of this Declaration to the contrary, the
Trustees may authorize any Investment Advisor (subject to such general or
specific instructions as the Trustees may, from time to time, adopt) to effect
purchases, sales, loans or exchanges of Trust Property on behalf of the Trustees
or may authorize any officer, employee or Trustee to effect such purchases,
sales, loans or exchanges pursuant to recommendations of any such Investment
Advisor (all without further action by the Trustees). Any such purchases, sales,
loans or exchanges shall be binding upon the Trust.
4.2 PARTIES TO CONTRACT. Any contract or agreement of the
character described in Section 4.1 of this Article IV or in the By-Laws of the
Trust may be entered into with any Person, although one or more of the Trustees
or officers of the Trust or any Holder may be an officer, director, trustee,
shareholder, or member of such other party to the contract or agreement, and no
such contract or agreement shall be invalidated or rendered voidable by reason
of the existence of any such relationship, nor shall any person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Trust under or by reason of such contract or agreement or held
accountable for any profit realized directly or indirectly therefrom, provided
that the contract or agreement when entered into was reasonable and fair and not
inconsistent with the provisions of this Article IV or the By-Laws. Any Trustee
or officer of the Trust or any Holder may be the other party to contracts or
agreements entered into pursuant to Section 4.1 hereof or the By-Laws of the
Trust, and any Trustee or officer of the Trust or any Holder may be financially
interested or otherwise affiliated with Persons who are parties to any or all of
the contracts or agreements mentioned in this Section 4.2.
ARTICLE V
LIMITATIONS OF LIABILITY
5.1 NO PERSONAL LIABILITY OF TRUSTEES, OFFICERS, EMPLOYEES OR
AGENTS. No Trustee, officer, employee or agent of the Trust when acting in such
capacity shall be subject to any personal liability whatsoever, in his or her
individual capacity, to any Person, other than the Trust or its Holders, in
connection with Trust Property or the affairs of the Trust; and all such Persons
shall look solely to the Trust Property for satisfaction of claims of any nature
against a Trustee, officer, employee or agent of the Trust arising in connection
with the affairs of the Trust. No Trustee, officer, employee or agent of the
Trust shall be liable to the Trust, Holders of Interests therein, or to any
Trustee, officer, employee, or agent thereof for any action or failure to act
(including, without limitation, the failure to compel in any way any former or
acting Trustee to redress any breach of trust), except for his or her own bad
faith, willful misfeasance, gross negligence or reckless disregard of his or her
duties.
5.2 INDEMNIFICATION OF TRUSTEES, OFFICERS, EMPLOYEES AND
AGENTS. The Trust shall indemnify each of its Trustees, officers, employees, and
agents (including Persons who serve at its request as directors, officers or
trustees of another organization in which it has any interest, as a shareholder,
creditor or otherwise) against all liabilities and expenses (including amounts
paid in satisfaction of judgments, in compromise, as fines and penalties, and as
counsel fees) reasonably incurred by him or her in connection with the defense
or disposition of any action, suit or other proceeding, whether civil or
criminal, in which he or she may be involved or with which he or she may be
threatened, while in office or thereafter, by reason of his or her being or
having been such a Trustee, officer, employee or agent, except with respect to
any matter as to which he or she shall have been adjudicated to have acted in
bad faith, willful misfeasance, gross negligence or reckless disregard of his or
her duties; provided, however, that as to any matter disposed of by a compromise
payment by such Person, pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other expenses shall be
provided unless there has been a determination that such Person did not engage
in willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office by the court or other body
approving the settlement or other disposition or by a reasonable determination,
based upon review of readily available facts (as opposed to a full trial-type
inquiry), that he or she did not engage in such conduct or by a reasonable
determination, based upon a review of the facts, that such Person was not liable
by reason of such conduct, by (a) the vote of a majority of a quorum of Trustees
who are neither "interested persons" of the Trust as defined in Section 2(a)(19)
of the 1940 Act nor parties to the proceeding, or (b) a written opinion from
independent legal counsel approved by the Trustees. The rights accruing to any
Person under these provisions shall not exclude any other right to which he or
she may be lawfully entitled; provided that no Person may satisfy any right of
indemnity or reimbursement granted herein or in Section 5.1 or to which he or
she may be otherwise entitled except out of the Trust Property. The Trustees may
make advance payments in connection with indemnification under this Section 5.2,
provided that the indemnified Person shall have given a written undertaking to
reimburse the Trust in the event it is subsequently determined that he or she is
not entitled to such indemnification.
5.3 LIABILITY OF HOLDERS; INDEMNIFICATION. The Trust shall
indemnify and hold each Holder harmless from and against any claim or liability
to which such Holder may become subject solely by reason of his or her being or
having been a Holder and not because of such Holder's acts or omissions or for
some other reason, and shall reimburse such Holder for all legal and other
expenses reasonably incurred by him or her in connection with any such claim or
liability (upon proper and timely request by the Holder); provided, however,
that no Holder shall be entitled to indemnification by any series established in
accordance with Section 8.8 unless such Holder is a Holder of Interests of such
series. The rights accruing to a Holder under this Section 5.3 shall not exclude
any other right to which such Holder may be lawfully entitled, nor shall
anything herein contained restrict the right of the Trust to indemnify or
reimburse a Holder in any appropriate situation even though not specifically
provided herein.
5.4 NO BOND REQUIRED OF TRUSTEES. No Trustee shall, as such,
be obligated to give any bond or surety or other security for the performance of
any of his or her duties hereunder.
5.5 NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS,
ETC. No purchaser, lender, or other Person dealing with the Trustees or any
officer, employee or agent of the Trust shall be bound to make any inquiry
concerning the validity of any transaction purporting to be made by the Trustees
or by said officer, employee or agent or be liable for the application of money
or property paid, loaned, or delivered to or on the order of the Trustees or of
said officer, employee or agent. Every obligation, contract, instrument,
certificate or other interest or undertaking of the Trust, and every other act
or thing whatsoever executed in connection with the Trust, shall be conclusively
relied upon as having been executed or done by the executors thereof only in
their capacities as Trustees, officers, employees or agents of the Trust. Every
written obligation, contract, instrument, certificate or other interest or
undertaking of the Trust made by the Trustees or by any officer, employee or
agent of the Trust, in his or her capacity as such, shall contain an appropriate
recital to the effect that the Trustee, officer, employee or agent of the Trust
shall not personally be bound by or liable thereunder, nor shall resort be had
to their private property or the private property of the Holders for the
satisfaction of any obligation or claim thereunder, and appropriate references
shall be made therein to the Declaration, and may contain any further recital
which they may deem appropriate, but the omission of such recital shall not
operate to impose personal liability on any of the Trustees, officers, employees
or agents of the Trust. The Trustees may maintain insurance for the protection
of the Trust Property, Holders, Trustees, officers, employees and agents in such
amount as the Trustees shall deem advisable.
5.6 RELIANCE ON EXPERTS, ETC. Each Trustee and officer or
employee of the Trust shall, in the performance of his or her duties, be fully
and completely justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of account or other
records of the Trust, upon an opinion of counsel, or upon reports made to the
Trust by any of its officers or employees or by any Investment Advisor,
Administrator, accountant, appraiser or other experts or consultants selected
with reasonable care by the Trustees, officers or employees of the Trust,
regardless of whether such counsel or expert may also be a Trustee.
5.7 ASSENT TO DECLARATION. Every Holder, by virtue of having
become a Holder in accordance with the terms of this Declaration, shall be held
to have expressly assented and agreed to the terms hereof and to have become a
party hereto.
ARTICLE VI
INTERESTS IN THE TRUST
6.1 GENERAL CHARACTERISTICS. (a) The Trustees shall have the
power and authority, without Holder approval, to issue Interests in one or more
series from time to time as they deem necessary or desirable. Each series shall
be separate from all other series in respect to the assets and liabilities
allocated to that series and shall represent a separate investment portfolio of
the Trust. The Trustees shall have exclusive power, without Holder approval, to
establish and designate such separate and distinct series, as set forth in
Section 6.2, and to fix and determine the relative rights and preferences as
between the Interests of the separate series as to right of redemption, special
and relative rights as to dividends and other distributions and on liquidation,
conversion rights, and conditions under which the series shall have separate
voting rights or no voting rights.
(b) The Trustees may, without Holder approval, divide
Interests of any series into two or more classes, Interests of each such class
having such preferences and special or relative rights and privileges (including
conversion rights, if any) as the Trustees may determine as provided in Section
6.3. The fact that a series shall have been initially established and designated
without any specific establishment or designation of classes, shall not limit
the authority of the Trustees to divide a series and establish and designate
separate classes thereof.
(c) The number of Interests authorized shall be
unlimited, and the Interests so authorized may be represented in part by
fractional Interests. From time to time, the Trustees may divide or combine the
Interests of any series or class into a greater or lesser number without thereby
changing the proportionate beneficial interests in the series or class. The
Trustees may issue Interests of any series or class thereof for such
consideration and on such terms as they may determine (or for no consideration
if pursuant to an Interest dividend or split-up), all without action or approval
of the Holders. All Interests when so issued on the terms determined by the
Trustees shall be fully paid and non-assessable. The Trustees may classify or
reclassify any unissued Interests or any Interests previously issued and
reacquired of any series or class thereof into one or more series or classes
thereof that may be established and designated from time to time. The Trustees
may hold as treasury Interests, reissue for such consideration and on such terms
as they may determine, or cancel, at their discretion from time to time, any
Interests of any series or class thereof reacquired by the Trust.
6.2 ESTABLISHMENT OF SERIES OF INTERESTS. (a) Without limiting
the authority of the Trustees set forth in Section 6.2(b) to establish and
designate any further series, the Trustees hereby establish and designate one
series, as follows: Everest Index3 Fund.
The provisions of this Article VI shall be applicable to the
above designated series and any further series that may from time to time be
established and designated by the Trustees as provided in Section 6.2(b).
(b) The establishment and designation of any series
of Interests other than the one set forth above 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 such
series, or as otherwise provided in such instrument. At any time that there are
no Interests outstanding of any particular series previously established and
designated, the Trustees may by an instrument executed by a majority of their
number abolish that series and the establishment and designation thereof. Each
instrument referred to in this paragraph shall have the status of an amendment
of this Declaration.
(c) Section 9.2 of this Declaration of Trust shall
apply also with respect to each such series as if such series were a separate
trust.
6.3 ESTABLISHMENT OF CLASSES. (a) The division of any series
into two or more classes and the establishment and designation of such classes
shall be effective upon the execution by a majority of the Trustees of an
instrument setting forth such division, and the establishment, designation, and
relative rights and preferences of such classes, or as otherwise provided in
such instrument. The relative rights and preferences of the classes of any
series may differ in such respects as the Trustees may determine to be
appropriate, provided that such differences are set forth in the aforementioned
instrument. At any time that there are no Interests outstanding of any
particular class previously established and designated, the Trustees may by an
instrument executed by a majority of their number abolish that class and the
establishment and designation thereof. Each instrument referred to in this
paragraph shall have the status of an amendment to this Declaration.
(b) Section 9.2 of this Declaration of Trust shall
apply also with respect to each such class as if such class were a separate
trust.
6.4 ASSETS OF SERIES. All consideration received by the Trust
for the issue or sale of Interests of a particular series together with all
Trust Property in which such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof, including any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may be,
shall irrevocably belong to that series for all purposes, subject only to the
rights of creditors of such series and except as may otherwise be required by
applicable tax laws, and shall be so recorded upon the books of account of the
Trust. Separate and distinct records shall be maintained for each series and the
assets associated with a series shall be held and accounted for separately from
the other assets of the Trust, or any other series. In the event that there is
any Trust Property, or any income, earnings, profits, and proceeds thereof,
funds, or payments which are not readily identifiable as belonging to any
particular series, the Trustees shall allocate them among any one or more of the
series established and designated from time to time in such manner and on such
basis as they, in their sole discretion, deem fair and equitable. Each such
allocation by the Trustees shall be conclusive and binding upon the Holders of
all Interests for all purposes.
6.5 LIABILITIES OF SERIES. (a) The Trust Property belonging to
each particular series shall be charged with the liabilities of the Trust in
respect to that series and all expenses, costs, charges and reserves
attributable to that series, and any general liabilities, expenses, costs,
charges or reserves of the Trust which are not readily identifiable as belonging
to any particular series shall be allocated and charged by the Trustees to and
among any one or more of the series established and designated from time to time
in such manner and on such basis as the Trustees in their sole discretion deem
fair and equitable. Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the Holders of all
Interests for all purposes. The Trustees shall have full discretion, to the
extent not inconsistent with the 1940 Act, to determine which items shall be
treated as income and which items as capital, and each such determination and
allocation shall be conclusive and binding upon the Holders.
(b) Without limitation of the foregoing provisions of
this Section, but subject to the right of the Trustees in their discretion to
allocate general liabilities, expenses, costs, charges or reserves as herein
provided, the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to a particular series shall be
enforceable against the assets of such series only, and not against the assets
of any other series. Notice of this limitation on interseries liabilities shall
be set forth in the certificate of trust of the Trust (whether originally or by
amendment) as filed or to be filed in the Office of the Secretary of State of
the State of Delaware pursuant to the DBTA, and upon the giving of such notice
in the certificate of trust, the statutory provisions of Section 3804 of the
DBTA relating to limitations on interseries liabilities (and the statutory
effect under Section 3804 of setting forth such notice in the certificate of
trust) shall become applicable to the Trust and each series. Every note, bond,
contract or other undertaking issued by or on behalf of a particular series
shall include a recitation limiting the obligation represented thereby to that
series and its assets.
6.6 DIVIDENDS AND DISTRIBUTIONS. (a) Dividends and
distributions on Interests of a particular series or any class thereof may be
paid with such frequency as the Trustees may determine, which may be daily or
otherwise, pursuant to a standing resolution or a resolution adopted only once
or with such frequency as the Trustees may determine, to the Holders of
Interests in that series or class, from such of the income and capital gains,
accrued or realized, from the Trust Property belonging to that series, or in the
case of a class, belonging to that series and allocable to that class, as the
Trustees may determine, after providing for actual and accrued liabilities
belonging to that series. All dividends and distributions on Interests in a
particular series or class thereof shall be distributed pro rata to the Holders
of Interests in that series or class in proportion to the total outstanding
Interests in that series or class held by such Holders at the date and time of
record established for the payment of such dividends or distribution, except to
the extent otherwise required or permitted by the preferences and special or
relative rights and privileges of any series or class. Such dividends and
distributions may be made in cash or Interests of that series or class 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 Holder
of the mode of the paying of such dividend or distribution to that Holder. Any
such dividend or distribution paid in Interests will be paid at the net asset
value thereof as determined in accordance with Section 7.4.
(b) The Interests in a series or a class of the Trust
shall represent beneficial interests in the Trust Property belonging to such
series or in the case of a class, belonging to such series and allocable to such
class. Each Holder of Interests in a series or a class shall be entitled to
receive its pro rata share of distributions of income and capital gains made
with respect to such series or such class. Upon reduction or withdrawal of its
Interests or indemnification for liabilities incurred by reason of being or
having been a Holder of Interests in a series or a class, such Holder shall be
paid solely out of the funds and property of such series or in the case of a
class, the funds and property of such series and allocable to such class of the
Trust. Upon liquidation or termination of a series or class of the Trust,
Holders of Interests in such series or class shall be entitled to receive a pro
rata share of the Trust Property belonging to such series or in the case of a
class, belonging to such series and allocable to such class.
6.7 VOTING RIGHTS. Notwithstanding any other provision hereof,
on each matter submitted to a vote of the Holders, each Holder shall be entitled
to one vote for each whole Interest standing in his name on the books of the
Trust, and each fractional Interest shall be entitled to a proportionate
fractional vote, irrespective of the series thereof or class thereof, and all
Interests of all series and classes thereof shall vote together as a single
class; provided, however, that (a) as to any matter with respect to which a
separate vote of one or more series or classes thereof is permitted or required
by the 1940 Act or the provisions of the instrument establishing and designating
the series or class, such requirements as to a separate vote by such series or
class thereof shall apply in lieu of all Interests of all series and classes
thereof voting together; and (b) as to any matter which affects only the
interests of one or more particular series or classes thereof, only the Holders
of the one or more affected series or classes shall be entitled to vote, and
each such series or class shall vote as a separate series or class.
6.8 RECORD DATES. The Trustees may from time to time close the
transfer books or establish record dates and times for the purposes of
determining the Holders entitled to be treated as such, to the extent provided
or referred to in Section 8.6.
6.9 TRANSFER. All Interests of each particular series or class
thereof shall be transferable, but transfers of Interests of a particular series
or class thereof will be recorded on the Interest transfer records of the Trust
applicable to that series or class only at such times as Holders shall have the
right to require the Trust to redeem Interests of that series or class and at
such other times as may be permitted by the Trustees.
6.10 EQUALITY. Except as provided herein or in the instrument
designating and establishing any class or series, all Interests of each
particular series or class thereof shall represent an equal proportionate
interest in the assets belonging to that series, or in the case of a class,
belonging to that series and allocable to that class, subject to the liabilities
belonging to that series, and each Interest of any particular series or class
shall be equal to each other Interest of that series or class; but the
provisions of this sentence shall not restrict any distinctions permissible
under Section 6.6 that may exist with respect to dividends and distributions on
Interests of the same series or class. The Trustees may from time to time divide
or combine the Interests of any particular series or class into a greater or
lesser number of Interests of that series or class without thereby changing the
proportionate beneficial interest in the assets belonging to that series or
class or in any way affecting the rights or Interests of any other series or
class.
6.11 FRACTIONS. Any fractional Interest of any series or
class, if any such fractional Interest is outstanding, shall carry
proportionately all the rights and obligations of a whole Interest of that
series or class, including rights and obligations with respect to voting,
receipt of dividends and distributions, redemption of Interests, and liquidation
of the Trust.
6.12 CLASS DIFFERENCES. Subject to Section 6.3, the relative
rights and preferences of the classes of any series may differ in such other
respects as the Trustees may determine to be appropriate in their sole
discretion, provided that such differences are set forth in the instrument
establishing and designating such classes and executed by a majority of the
Trustees.
6.13 CONVERSION OF INTERESTS. Subject to compliance with the
requirements of the 1940 Act, the Trustees shall have the authority to provide
that Holders of Interests of any series shall have the right to convert said
Interests into one or more other series in accordance with such requirements and
procedures as may be established by the Trustees. The Trustees shall also have
the authority to provide that Holders of Interests of any class of a particular
series shall have the right to convert said Interests into one or more other
classes of that particular series or any other series in accordance with such
requirements and procedures as may be established by the Trustees.
6.14 INVESTMENTS IN THE TRUST. The Trustees may accept
investments in the Trust from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase of Interests that conform to such authorized terms and
to reject any purchase orders for Interests whether or not conforming to such
authorized terms.
6.15 TRUSTEES AND OFFICERS AS HOLDERS. 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 Interests of the Trust 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 Interests 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 Interests generally.
6.16 NO PREEMPTIVE RIGHTS; DERIVATIVE SUITS. Holders shall
have no preemptive or other right to subscribe to any additional Interests or
other securities issued by the Trust. No action may be brought by a Holder on
behalf of the Trust unless Holders owning no less than 10% of the then
outstanding Interests, or series or class thereof, join in the bringing of such
action. A Holder of Interests in a particular series or a particular class of
the Trust 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
Holders of Interests in any other series or any other class of the Trust.
6.17 NO APPRAISAL RIGHTS. Holders shall have no right to
demand payment for their Interests or to any other rights of dissenting Holders
in the event the Trust participates in any transaction which would give rise to
appraisal or dissenters' rights by a stockholder of a corporation organized
under the General Corporation Law of Delaware, or otherwise.
6.18 STATUS OF INTERESTS AND LIMITATION OF PERSONAL LIABILITY.
Interests shall be deemed to be personal property giving only the rights
provided in this Amended and Restated Declaration of Trust. Every Holder by
virtue of acquiring Interests shall be held to have expressly assented and
agreed to the terms hereof and to be bound hereby. The death, incapacity,
dissolution, termination or bankruptcy of a Holder during the continuance of the
Trust shall not operate to dissolve or terminate the Trust or any series thereof
nor entitle the representative of such Holder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but shall
entitle the representative of such Holder only to the rights of such Holder
under this Trust. Ownership of Interests shall not entitle the Holder to any
title in or to the whole or any part of the Trust Property or right to call for
a partition or division of the same or for an accounting, nor shall the
ownership of Interests constitute the Holders as partners. Neither the Trust nor
the Trustees, nor any officer, employee or agent of the Trust, shall have any
power to bind personally any Holder, nor except as specifically provided herein
to call upon any Holder for the payment of any sum of money or assessment
whatsoever other than such as the Holder may at any time personally agree to
pay.
ARTICLE VII
PURCHASES AND REDEMPTIONS
7.1 PURCHASES. The Trustees, in their discretion, may, from
time to time, without a vote of the Holders, permit the purchase of Interests by
such party or parties (or increase in the Interests of a Holder), for such type
of consideration, including, without limitation, cash or property, at such time
or times (including, without limitation, each business day), and on such terms
as the Trustees may deem best, and may in such manner acquire other assets
(including, without limitation, the acquisition of assets subject to, and in
connection with the assumption of, liabilities) and businesses.
7.2 REDEMPTION BY HOLDER. Each Holder of Interests of the
Trust or any series or class thereof shall have the right at such times as may
be permitted by the Trust to require the Trust to redeem all or any part of his
or her Interests of the Trust, or series or class thereof, at a redemption price
equal to the net asset value per Interest of the Trust or series or class
thereof, next determined in accordance with Section 7.4 hereof after the
Interests are properly tendered for redemption, subject to any contingent
deferred sales charge or redemption charge in effect at the time of redemption.
Payment of the redemption price shall be in cash; provided, however, that if the
Trustees determine, which determination shall be conclusive, that conditions
exist which make payment wholly in cash unwise or undesirable, the Trust may,
subject to the requirements of the 1940 Act, make payment wholly or partly in
securities or other assets belonging to the Trust or series or class thereof of
which the Interests being redeemed are part of the value of such securities or
assets used in such determination of the net asset value.
Notwithstanding the foregoing, the Trust may postpone payment
of the redemption price and may suspend the right of the Holders of Interests of
the Trust, or series or class thereof, to require the Trust to redeem Interests
of the Trust, or of any series or class thereof, during any period or at any
time when and to the extent permissible under the 1940 Act.
7.3 REDEMPTION BY TRUST. Each Interest of the Trust, or series
or class thereof that has been established and designated is subject to
redemption by the Trust at the redemption price which would be applicable if
such Interest was then being redeemed by the Holder pursuant to Section 7.2
hereof: (a) at any time, if the Trustees determine in their sole discretion and
by majority vote that it is in the best interest of the Trust, or any series or
class thereof, to so redeem, or (b) upon such other conditions as may from time
to time be determined by the Trustees and set forth in the then current
Prospectus of the Trust with respect to maintenance of Holder accounts of a
minimum amount. Upon such redemption the Holders of the Interests so redeemed
shall have no further right with respect thereto other than to receive payment
of such redemption price.
7.4 NET ASSET VALUE. The net asset value per Interest of any
series shall be (a) in the case of a series whose Interests are not divided into
classes, the quotient obtained by dividing the value of the net assets of that
series (being the value of the assets belonging to that series less the
liabilities belonging to that series) by the total number of Interests of that
series outstanding, and (b) in the case of a class of Interests of a series
whose Interests are divided into classes, the quotient obtained by dividing the
value of the net assets of that series allocable to such class (being the value
of the assets belonging to that series allocable to such class less the
liabilities belonging to such class) by the total number of Interests of such
class outstanding; all determined in accordance with the methods and procedures,
including without limitation those with respect to rounding, established by the
Trustees from time to time.
The Trustees may determine to maintain the net asset value per
Interest of any series or any class at a designated constant dollar amount and
in connection therewith may adopt procedures consistent with the 1940 Act for
continuing declarations of income attributable to that series or that class as
dividends payable in additional Interests of that series at the designated
constant dollar amount and for the handling of any losses attributable to that
series or that class. Such procedures may provide that in the event of any loss
each Holder 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
Interests required to be canceled in order to permit the net asset value per
Interest of that series or class to be maintained, after reflecting such loss,
at the designated constant dollar amount. Each Holder of the Trust shall be
deemed to have agreed, by his or her investment in any series or class 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.
ARTICLE VIII
HOLDERS
8.1 RIGHTS OF HOLDERS. The right to conduct any business
hereinbefore described is vested exclusively in the Trustees, and the Holders
shall have no rights under this Declaration or with respect to the Trust
Property other than the beneficial interest conferred by their Interests and the
voting rights accorded to them under this Declaration.
8.2 REGISTER OF INTERESTS. A register shall be kept by the
Trust under the direction of the Trustees which shall contain the names and
addresses of the Holders and the number of Interests held by each Holder. Each
such register shall be conclusive as to the identity of the Holders of the Trust
and the Persons who shall be entitled to payments of distributions or otherwise
to exercise or enjoy the rights of Holders. No Holder shall be entitled to
receive payment of any distribution, nor to have notice given to it as herein
provided, until it has given its address to such officer or agent of the
Trustees as shall keep the said register for entry thereon. No certificates
certifying the ownership of interests need be issued except as the Trustees may
otherwise determine from time to time.
8.3 NOTICES. Any and all notices to which any Holder hereunder
may be entitled and any and all communications shall be deemed duly served or
given if presented personally to a Holder, left at his or her residence or usual
place of business, or sent via United States mail or by electronic transmission
to a Holder at his or her address as it is registered with the Trust, as
provided in Section 8.2. If mailed, such notice shall be deemed to be given when
deposited in the United States mail addressed to the Holder at his or her
address as it is registered with the Trust, as provided in Section 8.2, with
postage thereon prepaid.
8.4 MEETINGS OF HOLDERS. Meetings of the Holders may be called
at any time by a majority of the Trustees and shall be called by any Trustee
upon written request of Holders holding, in the aggregate, not less than 10% of
the Interests (or series or class thereof), such request specifying the purpose
or purposes for which such meeting is to be called. Any such meeting shall be
held within or without the State of Delaware on such day and at such time as the
Trustees shall designate. Holders of one-third of the Interests in the Trust,
present in person or by proxy, shall constitute a quorum for the transaction of
any business, except as may otherwise be required by the 1940 Act or other
applicable law or by this Declaration or the By-Laws of the Trust. If a quorum
is present at a meeting, an affirmative vote by the Holders present, in person
or by proxy, holding more than 50% of the total Interests (or series or class
thereof) of the Holders present, either in person or by proxy, at such meeting
constitutes the action of the Holders, unless the 1940 Act, other applicable
law, this Declaration or the By-Laws of the Trust require a greater number of
affirmative votes. Notwithstanding the foregoing, the affirmative vote by the
Holders present, in person or by proxy, holding less than 50% of the Interests
(or class or series thereof) of the Holders present, in person or by proxy, at
such meeting shall be sufficient for adjournments. Any meeting of Holders,
whether or not a quorum is present, may be adjourned for any lawful purpose
provided that no meeting shall be adjourned for more than six months beyond the
originally scheduled meeting date. Any adjourned session or sessions may be
held, within a reasonable time after the date set for the original meeting
without the necessity of further notice.
8.5 NOTICE OF MEETINGS. Written or printed notice of all
meetings of the Holders, stating the time, place and purposes of the meeting,
shall be given as provided in Section 8.3. At any such meeting, any business
properly before the meeting may be considered, whether or not stated in the
notice of the meeting. Any adjourned meeting held as provided in Section 8.4
shall not require the giving of additional notice.
8.6 RECORD DATE. For the purpose of determining the Holders
who are entitled to notice of any meeting, to vote at any meeting, to
participate in any distribution, or for the purpose of any other action, the
Trustees may from time to time fix a date, not more than 90 calendar days prior
to the date of any meeting of the Holders or payment of distributions or other
action, as the case may be, as a record date for the determination of the
persons to be treated as Holders of record for such purposes, and any Holder who
was a Holder at the date and time so fixed shall be entitled to vote at such
meeting or to be treated as a Holder of record for purposes of such other
action, even though he or she has since that date and time disposed of his or
her Interests, and no Holder becoming such after that date and time shall be so
entitled to vote at such meeting or to be treated as a Holder of record for
purposes of such other action. If the Trustees shall divide the Interests into
two or more series in accordance with Section 6.2 herein, nothing in this
Section shall be construed as precluding the Trustees from setting different
record dates for different series and if the Trustees shall divide any series
into two or more classes in accordance with Section 6.3 herein, nothing in this
Section 8.6 shall be construed as precluding the Trustees from setting different
record dates for different classes.
8.7 PROXIES, ETC. At any meeting of Holders, any Holder
entitled to vote thereat may vote by proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Secretary, or with such other officer or agent of the Trust as the Secretary may
direct, for verification prior to the time at which such vote shall be taken.
(a) Pursuant to a resolution of a majority of the
Trustees, proxies may be solicited in the name of one or more Trustees or one or
more of the officers of the Trust. Only Holders of record shall be entitled to
vote. Each Holder shall be entitled to a vote proportionate to its Interest in
the Trust.
(b) When Interests are held jointly by several
persons, any one of them may vote at any meeting in person or by proxy in
respect to such Interest, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
to such Interest.
(c) A proxy purporting to be executed by or on behalf
of a Holder shall be deemed valid unless challenged at or prior to its exercise,
and the burden of proving invalidity shall rest on the challenger. If the Holder
is a minor or a person of unsound mind, and subject to guardianship or to the
legal control of any other person regarding the charge or management of his or
her Interest, he or she may vote by his or her guardian or such other person
appointed or having such control, and such vote may be given in person or by
proxy.
8.8 REPORTS. The Trustees shall cause to be prepared, at least
annually, a report of operations containing a balance sheet and statement of
income and undistributed income of the Trust prepared in conformity with
generally accepted accounting principles and an opinion of an independent public
accountant on such financial statements. The Trustees shall, in addition,
furnish to the Holders at least semi-annually an interim report containing an
unaudited balance sheet as of the end of such period and an unaudited statement
of income and surplus for the period from the beginning of the current Fiscal
Year to the end of such period.
8.9 INSPECTION OF RECORDS. Any Holder, upon reasonable notice
to the Trust, may inspect and copy, during normal business hours, the following
Trust documents:
(a) A copy of the declaration of trust and
certificate of trust and all amendments thereto, together with copies of any
written powers of attorney pursuant to which the declaration of trust and any
certificate and any amendments thereto have been executed;
(b) Bylaws;
(c) minutes of meetings of the Holders; and
(d) semi-annual and annual reports.
Other records of the Trust, including a current list of the name and
last known business, residence or mailing address of each Holder and Trustee,
upon reasonable notice to the Trust, may be open to inspection by Holders during
normal business hours, if determined by the Trustees to be for a proper and
lawful purpose.
Any such request to inspect or copy records of the Trust by a Holder
shall be in writing and shall state the purpose of such request. The cost of any
copying shall be borne by the Holder and the Trust may request payment in
advance prior to honoring the Holder's request.
Notwithstanding anything to contrary, the Trustees of the Trust shall
have the right to keep confidential from the Holders, for such period of time as
the Trustees deem reasonable, any information that the Trustees reasonably
believe to be in the nature of trade secrets or other information the disclosure
of which the Trustees in good faith believe is not in the best interest of the
Trust or could damage the Trust or its business or which the Trust is required
by law or by agreement with a third party to keep confidential.
8.10 VOTING POWERS. (a) The Holders shall have power to vote
only (i) for the election of Trustees as contemplated by Section 2.2 hereof,
(ii) with respect to any investment advisory contract as contemplated by Section
4.1 hereof, (iii) with respect to termination of the Trust as provided in
Section 9.2 hereof, (iv) with respect to amendments to the Declaration of Trust
as provided in Section 9.3 hereof, (v) with respect to any merger, consolidation
or sale of assets as provided in Section 9.4 hereof, (vi) with respect to
incorporation of the Trust to the extent and as provided in Section 9.5 hereof,
and (vii) with respect to such additional matters relating to the Trust as may
be required by the 1940 Act, DBTA, or any other applicable law, the Declaration,
the By-Laws or any registration of the Trust with the Commission (or any
successor agency) or any state, or as and when the Trustees may consider
necessary or desirable.
(b) Each Holder shall be entitled to vote based on
the ratio his or her Interest bears to the Interests of all Holders entitled to
vote. Until Interests are issued, the Trustees may exercise all rights of
Holders and may take any action required by law, the Declaration or the By-Laws
to be taken by Holders. The By-Laws may include further provisions for Holders'
votes and meetings and related matters not inconsistent with this Declaration.
8.11 HOLDER ACTION BY WRITTEN CONSENT. Any action which may be
taken by the Holders may be taken without notice and without a meeting if
Holders holding more than 50% of the total Interests entitled to vote (or such
larger proportion thereof as shall be required by any express provision of this
Declaration) shall consent to the action in writing and the written consents
shall be filed with the records of the meetings of Holders. Such consents shall
be treated for all purposes as votes taken at a meeting of the Holders.
8.12 HOLDER COMMUNICATIONS. (a) Whenever ten or more Holders
who have been such for at least six months preceding the date of application,
and who hold in the aggregate at least 1% of the total Interests, shall apply to
the Trustees in writing, stating that they wish to communicate with other
Holders with a view to obtaining signatures for a request for a meeting of
Holders and accompanied by a form of communication and request which they wish
to transmit, the Trustees shall within five business days after receipt of such
application either (i) afford to such applicants access to a list of the names
and addresses of all Holders as recorded on the books of the Trust; or (ii)
inform such applicants as to the approximate number of Holders, and the
approximate cost of transmitting to them the proposed communication and form of
request.
(b) If the Trustees elect to follow the course
specified in clause (ii) above, the Trustees, upon the written request of such
applicants, accompanied by a tender of the material to be transmitted and of the
reasonable expenses of transmission, shall, with reasonable promptness,
transmit, by United States mail or by electronic transmission, such material to
all Holders at their addresses as recorded on the books, unless within five
business days after such tender the Trustees shall transmit, by United States
mail or by electronic transmission, to such applicants and file with the
Commission, together with a copy of the material to be transmitted, a written
statement signed by at least a majority of the Trustees to the effect that in
their opinion either such material contains untrue statements of fact or omits
to state facts necessary to make the statements contained therein not
misleading, or would be in violation of applicable law, and specifying the basis
of such opinion. The Trustees shall thereafter comply with any order entered by
the Commission and the requirements of the 1940 Act and the Securities Exchange
Act of 1934.
ARTICLE IX
DURATION; TERMINATION OF TRUST;
AMENDMENT; MERGERS; ETC.
9.1 DURATION. Subject to possible termination in accordance
with the provisions of Section 9.2, the Trust created hereby shall continue
perpetually pursuant to Section 3808 of DBTA.
9.2 TERMINATION OF TRUST. (a) The Trust may be terminated (i)
by the affirmative vote of the Holders of not less than two-thirds of the
Interests in the Trust at any meeting of the Holders, or (ii) by an instrument
in writing, without a meeting, signed by a majority of the Trustees and
consented to by the Holders of not less than two-thirds of such Interests, or
(iii) by the Trustees by written notice to the Holders. Upon any such
termination,
(i) The Trust shall carry on no business except
for the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up the
affairs of the Trust and all of the powers of the Trustees
under this Declaration shall continue until the affairs of the
Trust shall have been wound up, including the power to fulfill
or discharge the contracts of the Trust, collect its assets,
sell, convey, assign, exchange, or otherwise dispose of all or
any part of the remaining Trust Property to one or more
Persons at public or private sale for consideration which may
consist in whole or in part of cash, securities or other
property of any kind, discharge or pay its liabilities, and do
all other acts appropriate to liquidate its business; provided
that any sale, conveyance, assignment, exchange, or other
disposition of all or substantially all of the Trust Property
shall require approval of the principal terms of the
transaction and the nature and amount of the consideration by
the Holders with a Majority Interests Vote.
(iii) After paying or adequately providing for the
payment of all liabilities, and upon receipt of such releases,
indemnities and refunding agreements, as they deem necessary
for their protection, the Trustees may distribute the
remaining Trust Property, in cash or in kind or partly each,
among the Holders according to their respective rights.
(b) Upon termination of the Trust and distribution to
the Holders as herein provided, a majority of the Trustees shall execute and
lodge among the records of the Trust an instrument in writing setting forth the
fact of such termination and file a certificate of cancellation in accordance
with Section 3810 of the DBTA. Upon termination of the Trust, the Trustees shall
thereon be discharged from all further liabilities and duties hereunder, and the
rights and interests of all Holders shall thereupon cease.
9.3 AMENDMENT PROCEDURE.
(a) All rights granted to the Holders under this
Declaration of Trust are granted subject to the reservation of the right of the
Trustees to amend this Declaration of Trust as herein provided, except as set
forth herein to the contrary. Subject to the foregoing, the provisions of this
Declaration of Trust (whether or not related to the rights of Holders) may be
amended at any time, so long as such amendment is not in contravention of
applicable law, including the 1940 Act, by an instrument in writing signed by a
majority of the Trustees (or by an officer of the Trust pursuant to the vote of
a majority of such Trustees). Any such amendment shall be effective as provided
in the instrument containing the terms of such amendment or, if there is no
provision therein with respect to effectiveness, upon the execution of such
instrument and of a certificate (which may be a part of such instrument)
executed by a Trustee or officer of the Trust to the effect that such amendment
has been duly adopted.
(b) No amendment may be made, under Section 9.3(a)
above, which would change any rights with respect to any Interest in the Trust
by reducing the amount payable thereon upon liquidation of the Trust, by
repealing the limitations on personal liability of any Holder or Trustee, or by
diminishing or eliminating any voting rights pertaining thereto, except with a
Majority Interests Vote.
(c) A certification signed by a majority of the
Trustees setting forth an amendment and reciting that it was duly adopted by the
Holders or by the Trustees as aforesaid or a copy of the Declaration, as
amended, and executed by a majority of the Trustees, shall be conclusive
evidence of such amendment when lodged among the records of the Trust.
(d) Notwithstanding any other provision hereof, until
such time as Interests are first sold, this Declaration may be terminated or
amended in any respect by the affirmative vote of a majority of the Trustees or
by an instrument signed by a majority of the Trustees.
9.4 MERGER, CONSOLIDATION AND SALE OF ASSETS. The Trust may
merge or consolidate with any other corporation, association, trust or other
organization or may sell, lease or exchange all or substantially all of its
property, including its good will, upon such terms and conditions and for such
consideration when and as authorized by no less than a majority of the Trustees
and by a Majority Interests Vote of the Trust or by an instrument or instruments
in writing without a meeting, consented to by the Holders of not less than 50%
of the total Interests of the Trust or such series, as the case may be, and any
such merger, consolidation, sale, lease or exchange shall be deemed for all
purposes to have been accomplished under and pursuant to the statutes of the
State of Delaware. In accordance with Section 3815(f) of DBTA, an agreement of
merger or consolidation may effect any amendment to the Declaration or By-Laws
or effect the adoption of a new declaration of trust or by-laws of the Trust if
the Trust is the surviving or resulting business trust. A certificate of merger
or consolidation of the Trust shall be signed by a majority of the Trustees.
9.5 INCORPORATION. Upon a Majority Interests Vote, the
Trustees may cause to be organized or assist in organizing a corporation or
corporations under the laws of any jurisdiction or any other trust, partnership,
association or other organization to take over all of the Trust Property or to
carry on any business in which the Trust shall directly or indirectly have any
interest, and to sell, convey and transfer the Trust Property to any such
corporation, trust, association or organization in exchange for the equity
interests thereof or otherwise, and to lend money to, subscribe for the equity
interests of, and enter into any contracts with any such corporation, trust,
partnership, association or organization, or any corporation, partnership,
trust, association or organization in which the Trust holds or is about to
acquire equity interests. The Trustees may also cause a merger or consolidation
between the Trust or any successor thereto and any such corporation, trust,
partnership, association or other organization if and to the extent permitted by
law, as provided under the law then in effect. Nothing contained herein shall be
construed as requiring approval of the Holders for the Trustees to organize or
assist in organizing one or more corporations, trusts, partnerships,
associations or other organizations and selling, conveying or transferring a
portion of the Trust Property to such organizations or entities.
ARTICLE X
MISCELLANEOUS
10.1 CERTIFICATE OF DESIGNATION; AGENT FOR SERVICE OF PROCESS.
The Trust shall file, in accordance with Section 3812 of DBTA, in the office of
the Secretary of State of Delaware, a certificate of trust, in the form and with
such information required by Section 3810 of DBTA and executed in the manner
specified in Section 3811 of DBTA. In the event the Trust does not have at least
one Trustee qualified under Section 3807(a) of DBTA, then the Trust shall comply
with Section 3807(b) of DBTA by having and maintaining a registered office in
Delaware and by designating a registered agent for service of process on the
Trust, which agent shall have the same business office as the Trust's registered
office. The failure to file any such certificate, to maintain a registered
office, to designate a registered agent for service of process, or to include
such other information shall not affect the validity of the establishment of the
Trust, the Declaration, the By-Laws or any action taken by the Trustees, the
Trust officers or any other Person with respect to the Trust except insofar as a
provision of the DBTA would have governed, in which case the Delaware common law
governs.
10.2 GOVERNING LAW. This Declaration is executed by all of the
Trustees and delivered with reference to DBTA and the laws of the State of
Delaware, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to DBTA and
the laws of the State of Delaware (unless and to the extent otherwise provided
for and/or preempted by the 1940 Act or other applicable federal securities
laws); provided, however, that there shall not be applicable to the Trust, the
Trustees or this Declaration (a) the provisions of Section 3540 of Title 12 of
the Delaware Code, or (b) any provisions of the laws (statutory or common) of
the State of Delaware (other than the DBTA) pertaining to trusts which are
inconsistent with the rights, duties, powers, limitations or liabilities of the
Trustees set forth or referenced in this Declaration.
10.3 COUNTERPARTS. This Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
10.4 RELIANCE BY THIRD PARTIES. Any certificate executed by an
individual who, according to the records of the Trust or of any recording office
in which this Declaration may be recorded, appears to be a Trustee hereunder,
certifying to (a) the number or identity of Trustees or Holders, (b) the due
authorization of the execution of any instrument or writing, (c) the form of any
vote passed at a meeting of Trustees or Holders, (d) the fact that the number of
Trustees or Holders present at any meeting or executing any written instrument
satisfies the requirements of this Declaration, (e) the form of any By-Laws
adopted by or the identity of any officers elected by the Trustees, or (f) the
existence of any fact or facts which in any manner relate to the affairs of the
Trust, shall be conclusive evidence as to the matters so certified in favor of
any person dealing with the Trustees and their successors.
10.5 PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the DBTA, or with other applicable laws and
regulations, the conflicting provisions shall be deemed never to have
constituted a part of this Declaration; provided, however, that such
determination shall not affect any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of this Declaration shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration in any jurisdiction.
10.6 TRUST ONLY. It is the intention of the Trustees to create
only a business trust under DBTA with the relationship of trustee and
beneficiary between the Trustees and each Holder from time to time. It is not
the intention of the Trustees to create a general partnership, limited
partnership, joint stock association, corporation, bailment, or any form of
legal relationship other than a Delaware business trust except to the extent
such trust is deemed to constitute a corporation under the Code and applicable
state tax laws. Nothing in this Declaration of Trust shall be construed to make
the Holders, either by themselves or with the Trustees, partners or members of a
joint stock association.
10.7 WITHHOLDING. Should any Holder be subject to withholding
pursuant to the Code or any other provision of law, the Trust shall withhold all
amounts otherwise distributable to such Holder as shall be required by law and
any amounts so withheld shall be deemed to have been distributed to such Holder
under this Declaration of Trust. If any sums are withheld pursuant to this
provision, the Trust shall remit the sums so withheld to and file the required
forms with the Internal Revenue Service, or other applicable government agency.
10.8 HEADINGS AND CONSTRUCTION. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof or control
or affect the meaning, construction or effect of this instrument. Whenever the
singular number is used herein, the same shall include the plural; and the
neuter, masculine and feminine genders shall include each other, as applicable.
IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
/S/ VINOD GUPTA August 11, 2000
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Vinod Gupta
