SELECT ASSET FUND III
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AGREEMENT
AND DECLARATION OF TRUST
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AUGUST 23, 2000
TABLE OF CONTENTS
Page
ARTICLE I
The Trust
1.1 Name...............................................2
1.2 Definitions........................................2
1.3 Purpose and Powers of Trust........................4
ARTICLE II
Trustees
2.1 Number and Qualification...........................4
2.2 Term and Election; Vacancies.......................4
2.3 Resignation and Removal............................5
2.4 Meetings...........................................5
2.5 Officers...........................................6
ARTICLE III
Powers and Duties of Trustees
3.1 General............................................7
3.2 Investments........................................7
3.3 Legal Title........................................8
3.4 Issuance and Repurchase of Shares..................8
3.5 Borrow Money or Utilize Leverage...................8
3.6 Collection and Payment.............................8
3.7 Expenses...........................................9
3.8 By-Laws............................................9
3.9 Miscellaneous Powers...............................9
3.10 Action; Delegation; Committees...................10
3.11 Taxation as a Corporation........................10
3.12 Further Powers...................................10
ARTICLE IV
Limitations of Liability and Indemnification
4.1 No Personal Liability of
Shareholders, Trustees, etc.......................11
4.2 Mandatory Indemnification.........................11
4.3 No Duty of Investigation;
Notice in Trust Instruments, etc..................13
4.4 Reliance on Experts, etc..........................13
ARTICLE V
Shares of Beneficial Interest
5.1 Beneficial Interest...............................14
5.2 Classes and Series................................14
5.3 Issuance of Shares................................14
5.4 Rights of Shareholders............................15
5.5 Trust Only........................................15
5.6 Register of Shares................................15
5.7 Transfer Agent and Registrar......................16
5.8 Transfer of Shares................................16
5.9 Notices...........................................16
5.10 Net Asset Value..................................17
5.11 Distributions to Shareholders....................17
ARTICLE VI
Shareholders
6.1 Meetings of Shareholders..........................18
6.2 Voting............................................18
6.3 Notice of Meeting, Shareholder Proposals
and Record Date...................................19
6.4 Quorum and Required Vote..........................19
6.5 Proxies, etc......................................20
6.6 Reports...........................................21
6.7 Inspection of Records.............................21
6.8 Shareholder Action by Written Consent.............21
ARTICLE VII
Duration: Termination of Trust; Amendment; Mergers, Etc.
7.1 Duration..........................................21
7.2 Termination.......................................21
7.3 Amendment Procedure...............................23
7.4 Merger, Consolidation and Sale of Assets..........24
7.5 Redemption; Conversion............................24
ARTICLE VIII
Miscellaneous
8.1 Filing............................................24
8.2 Resident Agent....................................25
8.3 Governing Law.....................................25
8.4 Counterparts......................................25
8.5 Reliance by Third Parties.........................25
8.6 Provisions in Conflict with Law or Regulation.....26
SELECT ASSET FUND III
AGREEMENT
AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the
23rd day of August, 2000, by the Trustee hereunder, and by the holders of
shares of beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as set
forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number
of its shares of beneficial interest all in accordance with the provisions
hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property coming
into their hands as Trustees of a Delaware business trust in accordance
with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by
this Declaration and the Certificate of Trust filed with the Secretary of
State of the State of Delaware on August 17, 2000, shall constitute a
business trust under the Delaware Business Trust Statute and that this
Declaration shall constitute the governing instrument of such business
trust.
NOW, THEREFORE, the Trustees hereby declare that they will hold
all cash, securities, and other assets which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and dispose
of the same upon the following terms and conditions for the benefit of the
holders from time to time of shares of beneficial interest in this Trust as
hereinafter set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as "Select Asset Fund III"
and the Trustees shall conduct the activities of the Trust under that name
or any other name or names as they may from time to time determine.
1.2 Definitions. As used in this Declaration, the following terms
shall have the following meanings:
The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person" and "Principal Underwriter" shall have the meanings
given them in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust, as amended from
time to time by the Trustees.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Declaration" shall mean this Agreement and Declaration of
Trust, as amended or amended and restated from time to time, including by
way of any classifying or reclassifying Shares of any class or any series
of any such class or determining, amending, modifying, deleting or
supplementing any designations, powers, preferences, voting, conversion and
other rights, limitations, qualifications and terms and conditions thereof.
"Delaware Business Trust Statute" shall mean the provisions of the
Delaware Business Trust Act, 12 Del. C.ss.3801, et. seq., as such Act may be
amended from time to time.
"Majority Shareholder Vote" shall mean a vote of a majority of
the outstanding voting securities (as such term is defined in the 1940 Act)
of the Trust or the applicable class or classes or series or series of such
voting securities.
"Person" shall mean and include natural persons, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Prospectus" shall mean the currently effective Prospectus of
the Trust, if any, under the 1933 Act.
"Shareholders" shall mean as of any particular time the holders
of record of outstanding Shares of the Trust at such time.
"Shares" shall mean the transferable units of beneficial
interest into which the beneficial interest in the Trust shall be divided
from time to time and includes fractions of Shares as well as whole Shares.
All references to Shares shall be deemed to be Shares of any or all classes
or series thereof as the context may require.
"Trust" shall mean the trust established by this Declaration,
as amended from time to time.
"Trustee" shall mean the signatory to this Declaration, so long
as he shall continue in office in accordance with the terms hereof, and all
other persons who at the time in question have been duly elected or
appointed and have qualified as trustees in accordance with the provisions
hereof and the By-Laws and are then in office.
"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 in such
capacity.
The "1933 Act" refers to the Securities Act of 1933 and the
rules and regulations promulgated thereunder and exemptions therefrom
covering the Trust and its affiliated persons, as amended from time to
time.
The "1940 Act" refers to the Investment Company Act of 1940 and
the rules and regulations promulgated thereunder and exemptions granted
therefrom concerning the Trust and its Affiliated Persons, as amended from
time to time.
1.3 Purpose and Powers of Trust. The Trust is established for
the purpose of engaging in any activity not prohibited by Delaware law and
shall have the power to engage in any such activity and in any activity
incidental or related to any such activity.
ARTICLE II
Trustees
2.1 Number and Qualification. The number of Trustees of the
Trust shall initially be five (5), which number may be increased by or
pursuant to the By- Laws of the Trust but shall never be less than one (1),
provided that James A. McIntosh shall act as Sole Trustee until his
successors are duly elected and qualified. No reduction in the number of
Trustees shall have the effect of removing any Trustee from office prior to
the expiration of his term. An individual nominated as a Trustee shall be
at least 21 years of age and not older than such age as shall be set forth
in a written instrument signed or adopted by a majority of the Trustees
then in office and shall not be under legal disability. Trustees need not
own Shares and may succeed themselves in office.
2.2 Term and Election; Vacancies. A Trustee shall hold office
until his successor shall be elected and shall qualify, subject, however,
to prior death, resignation, retirement, disqualification or removal from
office. In no case shall a decrease in the number of Trustees shorten the
term of any incumbent Trustee. Any vacancy on the Board of Trustees that
results from an increase in the number of Trustees or otherwise may be
filled by a majority of the Trustees then in office, whether or not
sufficient to constitute a quorum, or by a sole remaining Trustee;
provided, however, that if the Shareholders of any class or series of the
Trust's capital stock are entitled separately to elect one or more
Trustees, a majority of the remaining Trustees elected by that class or
series or the sole remaining Trustee elected by that class may fill any
vacancy among the number of Trustees elected by that class or series.
Shareholders shall be entitled to elect Trustees only by a plurality vote
at a meeting of Shareholders called for such purpose or by written consent
of a majority of all the votes entitled to be cast in an election of such
Trustee or Trustees; provided, however, that if the Shareholders of any
class or series of the capital stock of the Trust are entitled separately
to elect one or more Trustees, only the Shareholders of that class or
series may elect a successor to fill a vacancy on the Board of Trustees
which results from the removal of a Trustee elected by that class or
series. No vacancy shall operate to annul this Declaration or to revoke any
existing agency created pursuant to the terms of this Declaration. Whenever
a vacancy in the number of Trustees shall occur, until such vacancy is
filled as provided herein, 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.
2.3 Resignation and Removal. Any Trustee may resign his trust
(without need for prior or subsequent accounting) by an instrument in
writing signed by him and delivered or mailed to the Chairman, if any, the
President or the Secretary and such resignation shall be effective upon
such delivery, or at a later date according to the terms of the instrument.
Any Trustee may be removed (provided the aggregate number of Trustees after
such removal shall not be less than the number required by Section 2.1
hereof) for cause at any time by written instrument, signed by two-thirds
of the remaining Trustees, specifying the date when such removal shall
become effective. Any Trustee may be removed (provided the aggregate number
of Trustees after such removal shall not be less than the minimum number
required by Section 2.1 hereof) without cause at any time by a written
instrument, signed or adopted by a majority of the remaining Trustees then
in office or by vote of Shares having a majority of the aggregate number of
Shares entitled to vote in the election of such Trustee, specifying the
date when such removal shall become effective. Upon the resignation or
removal of a Trustee, or such persons otherwise ceasing to be a Trustee,
such persons 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 incapacity or death of any Trustee, such
Trustee's legal representative shall execute and deliver on such Trustee's
behalf such documents as the remaining Trustees shall require as provided
in the preceding sentence.
2.4 Meetings. Meetings of the Trustees shall be held from time
to time upon the call of the Chairman, if any, the President, the Secretary
or any two Trustees. 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 mailed not less than 48
hours before the meeting or otherwise actually delivered orally or in
writing 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. The Trustees may act with or
without a meeting. A quorum for all meetings of the Trustees shall be
one-third of the Trustees then in office. Unless provided otherwise in this
Declaration of Trust, 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 then in
office or such other proportion as shall be specified herein for such
action at a meeting at which all Trustees then in office were present.
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 one-third of the members thereof.
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 or such other proportion as shall be specified
herein for action at a meeting at which all committee members were present.
With respect to actions of the Trustees and any committee of
the Trustees, Trustees who are Interested Persons in any action to be taken
may be counted for quorum purposes under this Section and shall be entitled
to vote to the extent not prohibited by the 1940 Act.
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; participation in a
meeting pursuant to any such communications system shall constitute
presence in person at such meeting except as otherwise provided by the 1940
Act.
2.5 Officers. The Trustees shall elect a President, a Secretary
and a Treasurer and may elect a Chairman who shall serve at the pleasure of
the Trustees or until their successors are elected. The Trustees may elect
or appoint or may authorize the Chairman, if any, or President to appoint
such other officers or agents with such other titles and powers as the
Trustees may deem to be advisable. A Chairman shall, and the President,
Secretary and Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General. The Trustees shall have exclusive and absolute
control over the Trust Property and over the activities of the Trust to the
same extent as if the Trustees were the sole owners of the Trust Property
and activities in their own right, but with such powers of delegation as
may be permitted by this Declaration. The Trustees shall have power to
engage in any activity not prohibited by Delaware law. The enumeration of
any specific power herein shall not be construed as limiting the aforesaid
power. The Trustees may perform such acts as in their sole discretion are
proper for conducting the activities of the Trust. The powers of the
Trustees may be exercised without order of or resort to any court. No
Trustee shall be obligated to give any bond or other security for the
performance of any of his duties or powers hereunder. Any power of the
Trustees shall also be a power of the Trust. The Trustees shall owe to the
Trust and its Shareholders the same fiduciary duties as owed by directors
of corporations to such corporations and their stockholders under the
general corporation law of the State of Delaware.
3.2 Investments. The Trustees shall have power to:
(a) manage, conduct, operate and carry on the activities
of an investment company;
(b) subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer, exchange,
distribute or otherwise deal in or dispose of any and all sorts of
property, tangible or intangible, including but not limited to securities
of any type whatsoever, whether equity or non-equity, of any issuer,
evidences of indebtedness of any person and any other rights, interests,
instruments or property of any sort and to exercise any and all rights,
powers and privileges of ownership or interest in respect of any and all
such investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons to exercise any of said rights,
powers and privileges in respect of any of said investments. The Trustees
shall not 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 name of the Trust or in the name of any other Person as
nominee, custodian or pledgee or, if the Trustees so determine, in the name
of one or more of the Trustees as joint tenants, on such terms as the
Trustees may determine, provided that the interest of the Trust therein is
appropriately protected.
The right, title and interest of the Trustees in any Trust
Property shall vest automatically in each person who may hereafter become a
Trustee upon his due election and qualification. Upon the ceasing of any
person to be a Trustee for any reason, such person shall automatically
cease to have any right, title or interest in any of the Trust Property,
and any right, title and interest of such Trustee in any Trust Property
shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered.
3.4 Issuance and Repurchase of Shares. Subject to the
provisions of this Declaration and applicable law, the Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including Shares in fractional denominations, and to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares
any funds or property whether capital or surplus or otherwise, to the full
extent now or hereafter permitted by the laws of the State of Delaware.
3.5 Borrow Money or Utilize Leverage. The Trustees shall have
the power to borrow money or otherwise obtain credit or utilize leverage in
connection with the activities of the Trust to the maximum extent permitted
by law, regulation or order 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 Collection and Payment. The Trustees shall have power to
collect all property due to the Trust; to pay all claims, including taxes,
against the Trust Property or the Trust, the Trustees or any officer,
employee or agent of the Trust; to prosecute, defend, compromise or abandon
any claims relating to the Trust Property or the Trust, or the Trustees or
any officer, employee or agent of the Trust; 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.
Except to the extent required for a Delaware business corporation, the
Shareholders shall have no power to vote as to whether or not a court
action, legal proceeding or claim should or should not be brought or
maintained derivatively or as a class action on behalf of the Trust or the
Shareholders.
3.7 Expenses. The Trustees shall have power to incur and pay
out of the assets or income of the Trust any expenses which in the opinion
of the Trustees are necessary or appropriate to carry out any of the
purposes of this Declaration, and the activities of the Trust, 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, underwriting, syndicating and
brokerage services, as they in good faith may deem reasonable and
reimbursement for expenses reasonably incurred by themselves on behalf of
the Trust.
3.8 By-Laws. A majority of the Trustees then in office may
adopt and from time to time amend or repeal By-Laws for the conduct of the
business of the Trust. Such By-Laws shall be binding on the Trust and the
Shareholders unless inconsistent with the provisions of this Declaration.
The Shareholders shall not have authority to adopt or amend By-Laws.
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 activities of the Trust, including investment
advisors, administrators, custodians, transfer agents, shareholder services
providers, accountants, counsel, brokers, dealers and others; (b) enter
into joint ventures, partnerships and any other combinations or
associations; (c) purchase, and pay for out of Trust Property, insurance
policies insuring the Shareholders, Trustees, officers, employees, agents,
investment advisors, distributors, selected dealers 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 constituting negligence, or whether
or not the Trust would have the power to indemnify such Person against such
liability; (d) establish pension, profit-sharing, share purchase, and other
retirement, incentive and benefit plans for any Trustees, officers,
employees and agents of the Trust; (e) make donations, irrespective of
benefit to the Trust, for charitable, religious, educational, scientific,
civic or similar purposes; (f) to the extent permitted by applicable law,
indemnify any Person with whom the Trust has dealings, including without
limitation any investment adviser, administrator, manager, transfer agent,
custodian, distributor or selected dealer, or any other person as the
Trustees may see fit to such extent as the Trustees shall determine; (g)
guarantee indebtedness or contractual obligations of others; (h) determine
and change the fiscal year of the Trust and the method in which its
accounts shall be kept; (i) 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; and (j) declare and pay distributions in respect of
any Shares, whether in cash or in kind, and set record dates therefor
either before or after the date of action by the Trustees.
3.10 Action; Delegation; Committees. Except as otherwise
expressly provided in this Declaration, action may be taken by (a) vote of
a majority of the Trustees present in person or by other means through
which all Trustees can hear each other at any meeting of which a majority
of the Trustees then in office are so present or (b) written consent of a
majority of the Trustees then in office. 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, including the declaration and payment of dividends and
other distributions and the exercise of any other power or authority the
Trustees may possess. The Trustees may designate one or more committees
each of which shall have all or such lesser portion of the power and
authority of the entire Board of Trustees as the Trustees shall determine
from time to time, except to the extent action by the Board of Trustees or
particular Trustees, rather than a committee thereof, is required by the
1940 Act.
3.11 Taxation as a Corporation. The Trust will make an election
under Treasury Regulation Section 301.7701-3 for the Trust to be classified
as an association taxable as a corporation for all U.S. federal income tax
purposes and will ensure that such election remains valid throughout the
Trust's existence.
3.12 Further Powers. The Trustees shall have the power to
conduct the activities of the Trust and carry on its operations in any and
all of its branches and maintain offices both within and without the State
of Delaware, in any and all states of the United States of America, in the
District of Columbia, and in any and all commonwealths, territories,
dependencies, colonies, possessions, agencies or instrumentalities of the
United States of America and of foreign governments, 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. In construing the provisions of this Declaration, the
presumption shall be in favor of a grant of power to the Trustees.
ARTICLE IV
Limitations of Liability and Indemnification
4.1 No Personal Liability of Shareholders, Trustees, etc. No
Shareholder of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with Trust Property or the
acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a
private corporation for profit incorporated under the general corporation
law of the State of Delaware. No Trustee or officer of the Trust shall be
subject in such capacity to any personal liability whatsoever to any
Person, other than the Trust or its Shareholders, in connection with Trust
Property or the affairs of the Trust, save only liability to the Trust or
its Shareholders arising from bad faith, willful misfeasance, gross
negligence or reckless disregard for his duty to such Person; and, subject
to the foregoing exception, all such Persons shall look solely to the Trust
Property for satisfaction of claims of any nature arising in connection
with the affairs of the Trust. If any Shareholder, Trustee or officer, as
such, of the Trust, is made a party to any suit or proceeding to enforce
any such liability, subject to the foregoing exception, he shall not, on
account thereof, be held to any personal liability.
4.2 Mandatory Indemnification. (a) The Trust shall indemnify
the Trustees and officers of the Trust (each such person being an
"indemnitee") against any liabilities and expenses, including amounts paid
in satisfaction of judgments, in compromise or as fines and penalties, and
reasonable counsel fees reasonably incurred by such indemnitee in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative
or investigative body in which he may be or may have been involved as a
party or otherwise (other than, except as authorized by the Trustees, as
the plaintiff or complainant) or with which he may be or may have been
threatened, while acting in any capacity set forth above in this Section
4.2 by reason of his having acted in any such capacity, except with respect
to any matter as to which he shall not have acted in good faith in the
reasonable belief that his action was in the best interest of the Trust or,
in the case of any criminal proceeding, as to which he shall have had
reasonable cause to believe that the conduct was unlawful, provided,
however, that no indemnitee shall be indemnified hereunder against any
liability to any person or any expense of such indemnitee arising by reason
of (i) willful misfeasance, (ii) bad faith, (iii) gross negligence
(negligence in the case of Affiliated Indemnitees), or (iv) reckless
disregard of the duties involved in the conduct of his position (the
conduct referred to in such clauses (i) through (iv) being sometimes
referred to herein as "disabling conduct"). Notwithstanding the foregoing,
with respect to any action, suit or other proceeding voluntarily prosecuted
by any indemnitee as plaintiff, indemnification shall be mandatory only if
the prosecution of such action, suit or other proceeding by such indemnitee
was authorized by a majority of the Trustees.
(b) Notwithstanding the foregoing, no indemnification
shall be made hereunder unless there has been a determination (1) by a
final decision on the merits by a court or other body of competent
jurisdiction before whom the issue of entitlement to indemnification
hereunder was brought that such indemnitee is entitled to indemnification
hereunder or, (2) in the absence of such a decision, by (i) a majority vote
of a quorum of those Trustees who are neither Interested Persons of the
Trust nor parties to the proceeding ("Disinterested Non-Party Trustees"),
that the indemnitee is entitled to indemnification hereunder, or (ii) if
such quorum is not obtainable or even if obtainable, if such majority so
directs, independent legal counsel in a written opinion concludes that the
indemnitee should be entitled to indemnification hereunder. All
determinations to make advance payments in connection with the expense of
defending any proceeding shall be authorized and made in accordance with
the immediately succeeding paragraph (c) below.
(c) The Trust shall make advance payments in connection
with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Trust receives a written
affirmation by the indemnitee of the indemnitee's good faith belief that
the standards of conduct necessary for indemnification have been met and a
written undertaking to reimburse the Trust unless it is subsequently
determined that he is entitled to such indemnification and if a majority of
the Trustees determine that the applicable standards of conduct necessary
for indemnification appear to have been met. In addition, at least one of
the following conditions must be met: (1) the indemnitee shall provide
adequate security for his undertaking, (2) the Trust shall be insured
against losses arising by reason of any lawful advances, or (3) a majority
of a quorum of the Disinterested Non-Party Trustees, or if a majority vote
of such quorum so directs, independent legal counsel in a written opinion,
shall conclude, based on a review of readily available facts (as opposed to
a full trial-type inquiry), that there is substantial reason to believe
that the indemnitee ultimately will be found entitled to indemnification.
(d) The rights accruing to any indemnitee under these
provisions shall not exclude any other right to which he may be lawfully
entitled.
(e) Notwithstanding the foregoing, subject to any
limitations provided by the 1940 Act and this Declaration, the Trust shall
have the power and authority to indemnify Persons providing services to the
Trust to the full extent provided by law as if the Trust were a corporation
organized under the Delaware General Corporation Law provided that such
indemnification has been approved by a majority of the Trustees.
4.3 No Duty of Investigation; Notice in Trust Instruments, etc.
No purchaser, lender, transfer agent or other person dealing with the
Trustees or with 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, undertaking, instrument, certificate, Share,
other security of the Trust, and every other act or thing whatsoever
executed in connection with the Trust shall be conclusively taken to have
been executed or done by the executors thereof only in their capacity as
Trustees under this Declaration or in their capacity as officers, employees
or agents of the Trust. The Trustees may maintain insurance for the
protection of the Trust Property, its Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to
cover possible liability, and such other insurance as the Trustees in their
sole judgment shall deem advisable or is required by the 1940 Act.
4.4 Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust shall, in the performance of its 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 the Trust's officers or employees or by any
advisor, administrator, manager, distributor, selected dealer, accountant,
appraiser or other expert or consultant selected with reasonable care by
the Trustees, officers or employees of the Trust, regardless of whether
such counsel or other person may also be a Trustee.
ARTICLE V
Shares of Beneficial Interest
5.1 Beneficial Interest. The interest of the beneficiaries
hereunder shall be divided into an unlimited number of shares of beneficial
interest, par value $.01 per share. All Shares issued in accordance with
the terms hereof, including, without limitation, Shares issued in
connection with a dividend in Shares or a split of Shares, shall be fully
paid and nonassessable when the consideration determined by the Trustees
(if any) therefor shall have been received by the Trust.
5.2 Classes and Series. The Trustees shall have the authority,
without the approval of the holders of any Shares of the Trust, to classify
and reclassify a limited or unlimited number of issued and unissued Shares
into one or more classes and one or more series of any or all of such
classes, each of which classes and series thereof shall have such
designations, powers, preferences, voting, conversion and other rights,
limitations, qualifications and terms and conditions, and such amendments,
modifications, deletions or supplements therefrom or thereto, as the
Trustees shall determine from time to time with respect to each such class
or series and set forth in a statement of preferences, terms or similar
document which shall be a part of this Declaration until and as further
amended, modified, deleted or supplemented in accordance herewith;
provided, however, that no reclassification of any issued and outstanding
Shares and no amendment, modification, deletion or supplement of any of the
designations, powers, preferences, voting, conversion or other rights,
limitations, qualifications and terms and conditions of any issued and
outstanding Shares as to which the 1940 Act or this Declaration would
require approval by any of such Shares may be made by the Trustees without
the affirmative vote or written consent of the holders of such Shares
specified in Section 7.3(a) to the extent required thereby. Prior to any
such reclassification all Shares shall be Common Shares and shall share
equally in the assets of the Company upon any liquidation and shall have
one vote per Share.
5.3 Issuance of Shares. The Trustees, in their discretion, may
from time to time without vote of the Shareholders issue Shares of any
class or any series of any such class to such party or parties and for such
amount and type of consideration, including cash or property or no
consideration, at such time or times, and on such terms as the Trustees may
determine, and may in such manner acquire other assets (including the
acquisition of assets subject to, and in connection with the assumption of,
liabilities) and businesses. The Trustees may from time to time divide or
combine the Shares of any class or any series of any such class into a
greater or lesser number without thereby changing the proportionate
beneficial interest in such Shares. Issuances and repurchases of Shares may
be made in whole Shares and/or l/l,000ths of a Share or multiples thereof
as the Trustees may determine.
5.4 Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically set forth.
The ownership of the Trust Property of every description and the right to
conduct any activities herein before described are vested exclusively in
the Trustees or as they determine, and the Shareholders shall have no
interest therein other than the beneficial interest conferred by their
Shares, and they shall have no right to call for any partition or division
of any property, profits, rights or interests of the Trust nor can they be
called upon to share or assume any losses of the Trust or, subject to the
right of the Trustees to charge certain expenses directly to Shareholders,
as provided in the last sentence of Section 3.7, suffer an assessment of
any kind by virtue of their ownership of Shares. The Shares shall not
entitle the holder to preference, preemptive, appraisal, conversion or
exchange rights except as specified in this Declaration.
5.5 Trust Only. It is the intention of the Trustees to create
only the relationship of Trustee and beneficiary between the Trustees and
each Shareholder 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 trust. Nothing in this Declaration shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or
members of a joint stock association.
5.6 Register of Shares. A register shall be kept at the Trust
or any transfer agent duly appointed by the Trustees under the direction of
the Trustees which shall contain the names and addresses of the
Shareholders and the number of Shares held by them respectively and a
record of all transfers thereof. Separate registers shall be established
and maintained for each class and each series of each class. Each such
register shall be conclusive as to who are the holders of the Shares of the
applicable class and series and who shall be entitled to receive dividends
or distributions or otherwise to exercise or enjoy the rights of
Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or distribution, nor to have notice given to him as herein
provided, until he has given his address to a transfer agent or such other
officer or agent of the Trustees as shall keep the register for entry
thereon. It is not contemplated that certificates will be issued for the
Shares; however, the Trustees, in their discretion, may authorize the
issuance of share certificates and promulgate appropriate fees therefore
and rules and regulations as to their use.
5.7 Transfer Agent and Registrar. The Trustees shall have power
to employ a transfer agent or transfer agents, and a registrar or
registrars, with respect to the Shares. The transfer agent or transfer
agents may keep the applicable register and record therein, the original
issues and transfers, if any, of the said Shares. Any such transfer agent
and registrars shall perform such duties as determined by the Trust, which
may include the duties usually performed by transfer agents and registrars
of stock in a corporation.
5.8 Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by its agent
thereto duly authorized in writing, upon delivery to the Trustees or a
transfer agent of the Trust of a duly executed instrument of transfer,
together with such evidence of the genuineness of each such execution and
authorization and of other matters as may reasonably be required. Upon such
delivery the transfer shall be recorded on the applicable register of the
Trust. Until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereof and neither the
Trustees nor any transfer agent or registrar nor any officer, employee or
agent of the Trust shall be affected by any notice of the proposed
transfer.
Any person becoming entitled to any Shares in consequence of
the death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as
the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is
made, the Shareholder of record shall be deemed to be the holder of such
for all purposes hereof, and neither the Trustees nor any transfer agent or
registrar nor any officer or agent of the Trust shall be affected by any
notice of such death, bankruptcy or incompetence, or other operation of
law.
5.9 Notices. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications to any Shareholder
shall be deemed duly served or given if mailed, postage prepaid, addressed
to any Shareholder of record at his last known address as recorded on the
applicable register of the Trust and may be sent together with any such
notice or other communication to another Shareholder at the same address.
5.10 Net Asset Value. The value of the assets of the Trust, the
amount of liabilities of the Trust and the net asset value of each
outstanding Share of the Trust shall be determined at such time or times on
such days as the Trustees may determine, in accordance with the 1940 Act.
The method of determination of net asset value shall be determined by the
Trustees. The power and duty to make net asset value determinations and
calculations may be delegated by the Trustees.
5.11 Distributions to Shareholders.
(a) The Trust shall from time to time distribute among
the Shares such proportion of the net profits, surplus (including paid-in
surplus), capital or assets of the Trust as the Trustees or any committee
or Person to whom the Trustees shall have delegated such power and
authority shall deem proper or as may otherwise be determined in the
instrument setting forth the terms of such Shares or such class or series
of Shares, which need not be ratable with respect to distributions in
respect of Shares of any other class or series thereof of the Trust. Such
distributions may be made in cash or property (including without limitation
any type of obligations of the Trust or any assets thereof) or any
combination thereof. The Trust shall not declare or pay any distribution in
respect of any of its Shares if such declaration or payment would violate
the general corporate law of the State of Delaware if the Trust were a
private corporation for profit formed under the general corporation law of
Delaware.
(b) Distributions may be made to the Shareholders of
record at the time such distribution is declared or at such later date as
shall be determined by the Trust prior to the date of payment.
(c) The Trustees may always retain from any source such
amount as they may deem necessary to pay the debts or expenses of the Trust
or to meet obligations of the Trust, or as they otherwise may deem
desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of the business of the Trust.
ARTICLE VI
Shareholders
6.1 Meetings of Shareholders. The Trust may, but shall not be
required to, hold annual meetings of the holders of any class or series of
Shares. An annual or special meeting of Shareholders may be called at any
time only by the Trustees or by the holders of a majority of the
outstanding Shares; provided, however, that if May 31 of any year shall
have passed and the Trustees shall not have called an annual meeting of
Shareholders for such year, the Trustees shall call a meeting for the
purpose of voting on the removal of one or more Trustees or the termination
of any investment advisory agreement, upon written request of holders of
Shares of the Trust having in the aggregate not less than a majority of the
votes of the outstanding Shares of the Trust entitled to vote on the matter
or matters in question, such request specifying the purpose or purposes for
which such meeting is to be called. Any meeting of Shareholders shall be
held within or without the State of Delaware on such day and at such time
as the Trustees shall designate.
6.2 Voting. Shareholders shall have no power to vote on any
matter except matters on which a vote of Shares is required by applicable
law, this Declaration or resolution of the Trustees. Any matter required to
be submitted for approval of any of the Shares and affecting one or more
classes or series shall require approval by the required vote of Shares of
the affected class or classes and series voting together as a single class
and, if such matter affects one or more classes or series thereof
differently from one or more other classes or series thereof or from one or
more series of the same class, approval by the required vote of Shares of
such other class or classes or series or series voting as a separate class;
provided, however, that except to the extent required by the 1940 Act or
this Declaration, there shall be no separate class or series votes on the
election or removal of Trustees or the selection of auditors for the Trust.
Shareholders of a particular class or series thereof shall not be entitled
to vote on any matter that affects the rights or interests of only one or
more other classes or series of such other class or classes or only one or
more other series of the same class. There shall be no cumulative voting in
the election or removal of Trustees.
6.3 Notice of Meeting, Shareholder Proposals and Record Date.
Notice of all meetings of Shareholders, stating the time, place and
purposes of the meeting, shall be given by the Trust by mail to each
Shareholder of record entitled to vote thereat at its registered address,
mailed at least 10 days before the meeting or otherwise in compliance with
applicable law. Except with respect to an annual meeting, at which any
business required by the 1940 Act may be conducted, only the business
stated in the notice of the meeting shall be considered at such meeting.
Subject to the provisions of applicable law, any Shareholder wishing to
include a proposal to be considered at an annual meeting must submit such
proposal to the Trust at least 30 days in advance of such meeting. Any
adjourned meeting may be held as adjourned one or more times without
further notice not later than 130 days after the record date initially
fixed therefor. For the purposes of determining the Shareholders who are
entitled to notice of and to vote at any meeting the Trustees may, without
closing the transfer books, fix a date not more than 100 days prior to the
date of such meeting of Shareholders as a record date for the determination
of the Persons to be treated as Shareholders of record for such purposes.
6.4 Quorum and Required Vote.
(a) The holders of one-third of the outstanding Shares of
the Trust on the record date present in person or by proxy shall constitute
a quorum at any meeting of the Shareholders for purposes of conducting
business on which a vote of all Shareholders of the Trust is being taken.
The holders of one-third of the outstanding Shares of a class or classes on
the record date present in person or by proxy shall constitute a quorum at
any meeting of the Shareholders of such class or classes for purposes of
conducting business on which a vote of Shareholders of such class or
classes is being taken. The holders of one-third of the outstanding Shares
of a series or series on the record date present in person or by proxy
shall constitute a quorum at any meeting of the Shareholders of such series
or series for purposes of conducting business on which a vote of
Shareholders of such series or series is being taken. Shares underlying a
proxy as to which a broker or other intermediary states its absence of
authority to vote with respect to one or more matters shall be treated as
present for purposes of establishing a quorum for taking action on any such
matter only to the extent so determined by the Trustees at or prior to the
meeting of Shareholders at which such matter is to be considered. Any
Shares as to which proxies have been solicited by the Trust and which have
not been voted on any particular matter may be voted by the Trustees on
such matter in the same proportion as all other votes of the same class or
series, as the case may be, received by the Trust.
(b) Subject to any provision of applicable law, this
Declaration or resolution of the Trustees specifying or requiring a greater
or lesser vote requirement for the transaction of any matter of business at
any meeting of Shareholders, (i) the affirmative vote of a plurality of the
Shares entitled to vote for the election of any Trustee or Trustees shall
be the act of such Shareholders with respect to the election of such
Trustee or Trustees, (ii) the affirmative vote of a majority of the Shares
present in person or represented by proxy and entitled to vote on any other
matter shall be the act of the Shareholders with respect to such matter,
and (iii) where a separate vote of one or more classes or series is
required on any matter, the affirmative vote of a majority of the Shares of
such class or classes or series or series present in person or represented
by proxy and entitled to vote on such matter shall be the act of the
Shareholders of such class or classes or series or series with respect to
such matter.
6.5 Proxies, etc. At any meeting of Shareholders, any holder of
Shares 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. 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 or employees of the Trust. Only Shareholders of record
shall be entitled to vote. Each full Share shall be entitled to one vote
and each fractional Share shall be entitled to a vote equal to its fraction
of a full Share. When any Share is held jointly by several persons, any one
of them may vote at any meeting in person or by proxy in respect of such
Share, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in
respect of such Share. A proxy purporting to be given by or on behalf of a
Shareholder of record on the record date for a meeting shall be deemed
valid if in writing (whether by facsimile, telephone transcription,
internet or other electronic means or by physical delivery) unless
challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. If the holder of any such Share is
a minor or a person of unsound mind, and subject to guardianship or to the
legal control of any other person as regards the charge or management of
such Share, he may vote by his guardian or such other person appointed or
having such control, and such vote may be given in person or by proxy. The
Trustees shall have the authority to make and modify from time to time
regulations regarding the validity of proxies. In addition to signed
proxies, such regulations may authorize facsimile, telephonic, Internet and
other methods of appointing a proxy that are subject to such supervision by
or under the direction of the Trustees as the Trustees shall determine.
6.6 Reports. The Trustees shall cause to be prepared and sent
to Shareholders at least annually and more frequently to the extent and in
the form required by law, regulation or any exchange on which Shares are
listed a report of operations containing financial statements of the Trust
prepared in conformity with generally accepted accounting principles and
applicable law.
6.7 Inspection of Records. The records of the Trust shall be
open to inspection by Persons who have been holders of record of at least
$25,000 in net asset value or liquidation preference of Shares for a
continuous period of not less than six months to the same extent and for
the same purposes as is permitted under the Delaware General Business
Corporation Law to shareholders of a Delaware business corporation.
6.8 Shareholder Action by Written Consent. Any action which may
be taken by Shareholders by vote may be taken without a meeting if the
holders of the requisite proportion of all of the Shares entitled to vote
thereon consent to the action in writing and the 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.
ARTICLE VII
Duration: Termination of Trust; Amendment; Mergers, Etc.
7.1 Duration. Subject to termination in accordance with the
provisions of Section 7.2 hereof, the Trust created hereby shall have
perpetual existence.
7.2 Termination.
(a) The Trust may be dissolved, after two thirds of the
Trustees then in office have approved a resolution therefor, upon approval
by the holders of Shares representing at least a majority of the votes of
all of the Shares outstanding on the record date for such meeting, voting
as a single class except to the extent required by the 1940 Act, this
Declaration or resolution of the Trustees. Upon the dissolution of the
Trust:
(i) The Trust shall carry on no activities except
for the purpose of winding up its affairs.
(ii) The Trustees or an agent appointed by 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, merge where the Trust is
not the survivor, transfer 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
in 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,
merger or consolidation after giving effect to which the persons who
were the Shareholders immediately prior thereto hold less than a
majority of the equity interest and voting power of the surviving
entity, transfer or other disposition of all or substantially all the
Trust Property of the Trust shall require approval of the principal
terms of the transaction and the nature and amount of the
consideration with the same vote as required for dissolution pursuant
to paragraph (a) above.
(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 Shareholders
according to their respective rights.
(iv) In determining the liabilities of the Trust,
the Trustees may rely on lists of creditors provided by the officers
or agents of the Trust, need not publish notice of dissolution except
to the extent required by Delaware law and may rely on opinions
(including reasoned opinions) of counsel, accountants, appraisers and
others as to the likelihood or amount of any contingent or
unliquidated liabilities.
(b) After the winding up and termination of the Trust and
distribution to the Shareholders 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 shall
execute and file a certificate of cancellation with the Secretary of State
of the State of Delaware. Upon termination of the Trust, the Trustees shall
thereupon be discharged from all further liabilities and duties hereunder,
and the rights and interests of all Shareholders shall thereupon cease.
7.3 Amendment Procedure.
(a) Other than Sections 2.2, 2.3, 3.8, 6.1, 6.8, 7.2,
7.3, 7.4 and 7.5, this Declaration or any provision hereof may be amended,
modified, deleted or supplemented (each, an "amendment") if a majority of
the Trustees then in office have approved a resolution therefor, and, if
any approval of any affected Shareholders is required by the 1940 Act, this
Declaration or resolution of the Trustees, such approval has been obtained.
Sections 2.2, 2.3, 3.8, 6.1, 6.8, 7.2, 7.3, 7.4 and 7.5, or any provision
thereof, may be amended if a majority of the Trustees then in office have
approved a resolution therefor and if the holders of not less than a
majority of the affected Shares outstanding on the record date, voting as a
single class except to the extent required by the 1940 Act or this
Declaration, have approved a resolution therefor.
(b) Nothing contained in this Declaration shall permit
the amendment of this Declaration to impair the exemption from personal
liability of the Shareholders, Trustees, officers, employees and agents of
the Trust or to permit assessments upon Shareholders with respect to whose
Shares the Trust has received the consideration, if any, fixed by the Trust
in connection with the issuance thereof.
(c) An amendment duly adopted by the requisite vote of
the Board of Trustees and, if required, Shareholders as aforesaid, shall
become effective at the time of such adoption or at such other time as may
be designated by the Board of Trustees or Shareholders, as the case may be.
A certification signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted by the Trustees and, if
required, Shareholders as aforesaid, or a copy of the Declaration, as
amended, and executed by a majority of the Trustees then in office, shall
be conclusive evidence of such amendment when lodged among the records of
the Trust or at such other time designated by the Board.
Notwithstanding any other provision hereof, until such time as
Shares are issued and outstanding, this Declaration may be terminated or
amended in any respect by the affirmative vote of a majority of the
Trustees then in office or by an instrument signed by a majority of the
Trustees then in office.
7.4 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 the Trust Property or the property, including its good will, upon such
terms and conditions and for such consideration when and as authorized by
two-thirds of the Trustees then in office, and, if any approval of any
affected Shareholders is required by the 1940 Act, this Declaration or
resolution of the Trustees, such approval has been obtained.
7.5 Redemption; Conversion. No holder of Shares of any class or
series, other than in accordance with the provisions of Section 23(c)
(excluding Rule 23c-3 thereunder) of the 1940 Act and other than to the
extent expressly determined by the Trustees with respect to Shares
qualifying as preferred stock pursuant to Section 18(a) of the 1940 Act,
shall have any right to require the Trust or any person controlled by the
Trust to purchase any of such holder's Shares. The Trust may be converted
at any time from a "closed-end investment company" to an "open-end
investment company" as those terms are defined by the 1940 Act or a company
obligated to repurchase shares under Rule 23c-3 of the 1940 Act (an
"interval company"), upon the approval of such a proposal, together with
the necessary amendments to this Declaration to permit such a conversion
and operation of the Trust as an "open-end company," by a majority of the
Trustees then in office, by the holders of not less than 75% of the Trust's
outstanding Shares entitled to vote thereon and by such other vote or votes
of the holders of any class or classes or series of Shares as may be
required by the 1940 Act, this Declaration or resolution of the Trustees.
ARTICLE VIII
Miscellaneous
8.1 Filing. This Declaration and any amendment hereto shall be
filed in such places as may be required or as the Trustees deem
appropriate. Each amendment shall be accompanied by a certificate signed
and acknowledged by a Trustee stating that such action was duly taken in a
manner provided herein, and shall, upon insertion in the Trust's minute
book, be conclusive evidence of all amendments contained therein. A
restated Declaration, containing the original Declaration as amended by all
amendments theretofore made, may be executed from time to time by a
majority of the Trustees then in office and shall, upon insertion in the
Trust's minute book, be conclusive evidence of all amendments contained
therein and may thereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
8.2 Resident Agent. The Trust shall maintain a resident agent
in the State of Delaware, which agent shall initially be The Corporation
Trust Company, 1209 Orange Street, Wilmington, Delaware 19801. The Trustees
may designate a successor resident agent, provided, however, that such
appointment shall not become effective until written notice thereof is
delivered to the office of the Secretary of the State.
8.3 Governing Law. This Declaration is executed by a majority
of the Trustees in office at the time of such execution and delivered in
the State of Delaware and with reference to the laws thereof, and the
rights of all parties and the validity and construction of every provision
hereof shall be subject to and construed according to the laws of said
State and reference shall be specifically made to the business corporation
law of the State of Delaware as to the construction of matters not
specifically covered herein or as to which an ambiguity exists, although
such law shall not be viewed as limiting the powers otherwise granted to
the Trustees hereunder and any ambiguity shall be viewed in favor of such
powers.
8.4 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.
8.5 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
Shareholders, (b) the name of the Trust, (c) the due authorization of the
execution of any instrument or writing, (d) the form of any vote passed at
a meeting of Trustees or Shareholders, (e) the fact that the number of
Trustees or Shareholders present at any meeting or executing any written
instrument satisfies the requirements of this Declaration, (f) the form of
any By Laws adopted by or the identity of any officers elected by the
Trustees, or (g) 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.
8.6 Provisions in Conflict with Law or Regulation.
(a) The provisions of this Declaration are severable, and
if a majority of the Trustees then in office shall determine, with the
advice of counsel, that any of such provisions is in conflict with the 1940
Act, the regulated investment company provisions of the Code or with other
applicable laws and regulations, they may, but shall be under no
obligation, to declare that the conflicting provision shall be deemed never
to have constituted a part of this Declaration to the extent of such
conflict; 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.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
By: /s/
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James A. McIntosh
