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AMENDED AND RESTATED
DECLARATION OF TRUST
of
SCUDDER WEISEL CAPITAL
ENTREPRENEURS FUND,
a Delaware Business Trust
November 20, 2000
88 Kearny Street
Suite 2100
San Francisco, CA 94104
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TABLE OF CONTENTS
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ARTICLE I Name and Definitions.......................................................1
Section 1. Name.................................................................1
Section 2. Definitions..........................................................1
ARTICLE II Purpose of Trust..........................................................2
ARTICLE III Shares ..................................................................3
Section 1. Division of Beneficial Interest......................................3
Section 2. Ownership of Shares..................................................4
Section 3. Transfer of Shares...................................................4
Section 4. Investments in the Trust.............................................4
Section 5. Status of Shares and Limitation of Personal Liability................4
Section 6. Establishment and Designation of Series or Class.....................5
Section 7. Indemnification of shareholders......................................7
ARTICLE IV Trustees .................................................................7
Section 1. Number; Election and Tenure..........................................7
Section 2. Effect of Termination of Service.....................................8
Section 3. Powers...............................................................8
Section 4. Payment of Expenses by the Trust....................................12
Section 5. Payment of Expenses by Shareholders.................................12
Section 6. Ownership of Assets of the Trust....................................12
Section 7. Service Contracts...................................................12
Section 8. Trustees and Officers as Shareholders...............................14
ARTICLE V Shareholders' Voting Powers and Meetings..................................14
Section 1. Voting Powers, Meetings, Notice, and Record Dates...................14
Section 2. Quorum and Required Vote............................................15
Section 3. Record Dates........................................................15
Section 4. Additional Provisions...............................................15
ARTICLE VI Net Asset Value, Distributions and Repurchases...........................15
Section 1. Determination of Net Asset Value, Net Income, and Distributions.....15
Section 2. Repurchases.........................................................16
ARTICLE VII Compensation, Limitation of Liability and Indemnification of Trustees...17
Section 1. Compensation........................................................17
Section 2. Limitation of Liability and Indemnification.........................17
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or Surety.......19
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Section 4. Insurance...........................................................19
ARTICLE VIII Miscellaneous..........................................................19
Section 1. Liability of Third Persons Dealing with Trustees....................19
Section 2. Termination of the Trust or Any Series or Class.....................20
Section 3. Reorganization......................................................20
Section 4. Amendments..........................................................21
Section 5. Filing of Copies, References, Headings..............................22
Section 6. Applicable Law......................................................22
Section 7. Provisions in Conflict with Law or Regulations......................23
Section 8. Business Trust Only.................................................23
Section 9. Writings............................................................23
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
SCUDDER WEISEL CAPITAL ENTREPRENEURS FUND
THIS AMENDED AND RESTATED DECLARATION OF TRUST is made and entered into as
of the date set forth below by the Trustees named hereunder for the purpose of
forming a Delaware business trust in accordance with the provisions hereinafter
set forth.
NOW, THEREFORE, the Trustees hereby direct that the certificate of Trust
be filed with the office of the secretary of state of the state of Delaware and
do hereby declare that the Trustees will hold IN TRUST all cash, securities, and
other assets which the Trust now possesses or may hereafter acquire from time to
time in any manner and manage and dispose of the same upon the following terms
and conditions for the benefit of the holders of shares of this Trust.
ARTICLE I
NAME AND DEFINITIONS
SECTION 1. NAME. This Trust shall be known as the Scudder Weisel Capital
Entrepreneurs Fund and the Trustees shall conduct the business of the Trust
under that name or any other name as they may from time to time determine.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time, which By-Laws are expressly herein incorporated by reference as
part of the "governing instrument" within the meaning of the Delaware Act;
(b) "Certificate of Trust" means the certificate of trust, as
amended or restated from time to time, filed by the Trustees in the office of
the Secretary of State of the State of Delaware in accordance with the Delaware
Act;
(c) "Class" means a class of shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(d) "Commission" shall have the meaning given such term in the 1940
Act;
(e) "Declaration of Trust" means this Declaration of Trust, as
amended or restated from time to time;
(f) "Delaware Act" means the Delaware Business Trust Act 12 Del. C.
Section 3801 et seq., as amended from time to time;
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(g) "Interested Person" shall have the meaning given it in section
2(a)(19) of the 1940 Act;
(h) "Manager" means a party furnishing services to the Trust
pursuant to any contract described in Article IV, section 7(a) hereof;
(i) "1940 Act" means the Investment Company Act of 1940 and the
rules and regulations thereunder, all as amended from time to time;
(j) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates, and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
(k) "Principal Underwriter" shall have the meaning given such term
in the 1940 Act;
(l) "Series" means each series of shares established and designated
under or in accordance with the provisions of Article III hereof;
(m) "Shareholder" means a record owner of outstanding shares;
(n) "Shares" means the shares 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;
(o) "Trust" means the Delaware Business Trust established under the
Delaware Act by this Declaration of Trust and the filing of the certificate of
Trust in the office of the Secretary of State of the State of Delaware;
(p) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is from time to time owned or held by or for the
account of the Trust; and
(q) "Trustees" means the "Person" or "Persons" who have signed this
Declaration of Trust and all other Persons who may from time to time be duly
elected or appointed to serve as Trustees in accordance with the provisions
hereof, in each case so long as such Person shall continue in office in
accordance with the terms of this Declaration of Trust, and reference herein to
a Trustee or the Trustees shall refer to such Person or Persons in his or her or
their capacity as Trustees hereunder.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the business
of a management investment company registered under the 1940 Act and to carry on
such other business as the Trustees may from time to time determine pursuant to
their authority under this Declaration of Trust.
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ARTICLE III
SHARES
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The Trustees may authorize
that the beneficial interest in the Trust be divided into one or more Series.
The Trustees may divide each Series into two or more Classes. Subject to the
further provisions of this Article III and any applicable requirements of the
1940 Act, the Trustees shall have full power and authority, in their sole
discretion, and without obtaining any authorization or vote of the shareholders
of any Series or Class thereof, (i) to divide the beneficial interest in each
Series or Class thereof into Shares, with or without par value as the Trustees
shall determine, (ii) to issue Shares without limitation as to number (including
fractional Shares) to such Persons and for such amount and type of
consideration, subject to any restriction set forth in the By-Laws, including
cash or securities, at such time or times and on such terms as the Trustees may
deem appropriate, (iii) to establish and designate and to change in any manner
any Series or Class thereof and to fix such preferences, voting powers, rights,
duties and privileges and business purpose of each Series or Class thereof as
the Trustees may from time to time determine, which preferences, voting powers,
rights, duties and privileges may be senior or subordinate to (or in the case of
business purpose, different from) any existing Series or Class thereof and may
be limited to specified property or obligations of the Trust or profits and
losses associated with specified property or obligations of the Trust, (iv) to
divide or combine the Shares of any Series or Class thereof into a greater or
lesser number without thereby materially changing the proportionate beneficial
interest of the Shares of such Series or Class thereof in the assets held with
respect to that Series, (v) to classify or reclassify any issued Shares of any
Series or Class thereof into Shares of one or more Series or Classes thereof;
(vi) to change the name of any Series or Class thereof; (vii) to abolish any one
or more Series or Classes thereof; and (viii) to take such other action with
respect to the Shares as the Trustees may deem desirable.
Subject to the distinctions permitted among Classes of the same Series as
established by the Trustees, consistent with the requirements of the 1940 Act,
each share of a Series of the Trust shall represent an equal beneficial interest
in the net assets of such Series, and each holder of Shares of a Series shall be
entitled to receive such holder's pro rata share of distributions of income and
capital gains, if any, made with respect to such Series. Upon redemption or
repurchase of the Shares of any Series, the applicable Shareholder shall be paid
solely out of the funds and property of such Series of the Trust.
All references to Shares in this Declaration of Trust shall be deemed to
be Shares of any or all Series or Classes thereof, as the context may require.
All provisions herein relating to the Trust shall apply equally to each Series
of the Trust and each Class thereof, except as the context otherwise requires.
All Shares issued hereunder, including, without limitation, Shares issued
in connection with a dividend in Shares or a split or reverse split of Shares,
shall be fully paid and non-assessable. Except as otherwise provided by the
Trustees, Shareholders shall have no preemptive or other right to subscribe to
any additional Shares or other securities issued by the Trust.
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SECTION 2. OWNERSHIP OF SHARES. The ownership of Shares shall be recorded
on the books of the Trust or those of a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series or
Class of the Trust. No certificates certifying the ownership of Shares shall be
issued except as the Trustees may otherwise determine from time to time. The
Trustees may make such rules as they consider appropriate for the issuance of
Share certificates, the transfer of Shares of each Series or Class of the Trust
and similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to the
identity of the Shareholders of each Series or Class of the Trust and as to the
number of Shares of each Series or Class of the Trust held from time to time by
each Shareholder.
SECTION 3. TRANSFER OF SHARES. Except as otherwise provided by the
Trustees, Shares shall be transferable on the books of the Trust only by the
record holder thereof or by his or her duly authorized agent upon delivery to
the Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence of the genuineness of each such execution and authorization and of such
other matters as may be required by the Trustees. The Trustees may impose
restrictions on share transfer in their discretion. Upon such delivery, and
subject to any further requirements specified by the Trustees or contained in
the By-Laws, the transfer shall be recorded on the books of the Trust. Until a
transfer is so recorded, the Shareholder of record of Shares shall be deemed to
be the holder of such Shares for all purposes hereunder and neither the Trustees
nor the Trust, nor any transfer agent or registrar or any officer, employee, or
agent of the Trust, shall be affected by any notice of a proposed transfer.
Without limiting the foregoing, unless approved by the Trustees, any transfer of
Shares will be void if made (i) to an account held through a broker or dealer
that has not entered into a selling group agreement with the Principal
Underwriter of the Trust or its delegate or (ii) to any person who is not a
"Qualified Client," as that term is defined in Rule 205-3 under the Investment
Advisers Act of 1940, as amended, or as defined under any successor law, rule or
regulation.
SECTION 4. INVESTMENTS IN THE TRUST. Investments may be accepted by the
Trust from Persons, at such times, on such terms, and for such consideration as
the Trustees from time to time may authorize.
SECTION 5. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof. The death,
incapacity, dissolution, termination, or bankruptcy of a Shareholder during the
existence of the Trust shall not operate to terminate the Trust, nor entitle the
representative of any such Shareholder to an accounting or to take any action in
court or elsewhere against the Trust or the Trustees, but entitles such
representative only to the rights of such Shareholder under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust Property or right to call for a participation or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. No Shareholder shall be personally
liable for the debts, liabilities, obligations and expenses incurred by,
contracted for, or otherwise existing with respect to, the Trust or any Series.
Neither the Trust nor the Trustees, nor any officer, employee, or agent of the
Trust shall have any power to bind personally any Shareholders, nor, except as
specifically
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provided herein, to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at any
time personally agree to pay.
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SERIES OR CLASS. The
establishment and designation of any Series or Class of Shares of the Trust
shall be effective upon the adoption by a majority of the then Trustees of a
resolution that sets forth such establishment and designation and the relative
rights and preferences of such Series or Class of the Trust, whether directly in
such resolution or by reference to another document including, without
limitation, any registration statement of the Trust, or as otherwise provided in
such resolution.
Shares of each Series or Class of the Trust established pursuant to this
Article III, unless otherwise provided in the resolution establishing such
Series or Class, shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of Shares of a
particular Series or Class thereof, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof from whatever source derived (including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such assets and
any funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be) shall irrevocably be held separately with respect to that
Series for all purposes, subject only to the rights of creditors of such Series
from the assets of the Trust and every other Series, and shall be so recorded
upon the books of account of the Trust. Such consideration, assets, income,
earnings, profits and proceeds thereof, from whatever source derived,
(including, without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds), in whatever form the same may be, are herein
referred to as "assets held with respect to" that Series. In the event that
there are any assets, income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Trustees shall allocate
such General Assets to, between or among any one or more of the Series in such
manner and on such basis as the Trustees, in their sole discretion, deem fair
and equitable, and any General Assets so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by the Trustees shall
be conclusive and binding upon the Shareholders of all Series for all purposes.
Separate and distinct records shall be maintained for each Series and the assets
held with respect to each Series or Class shall be held and accounted for
separately from the assets held with respect to all other Series or Classes and
the General Assets of the Trust not allocated to such Series or Classes.
(b) Liabilities Held with Respect to a Particular Series. The assets
of the Trust held with respect to each particular Series shall be charged
against the liabilities of the Trust held with respect to that Series and all
expenses, costs, charges, and reserves attributable to that Series, except that
liabilities and expenses allocated solely to a particular Class shall be borne
by that Class. Any general liabilities of the Trust which are not readily
identifiable as being held with respect to any particular Series or Class shall
be allocated and charged by the Trustees to and among any one or more of the
Series or Classes in such manner and on such basis as the Trustees in their sole
discretion deem fair and equitable. All liabilities, expenses,
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costs, charges, and reserves so charged to a Series or Class are herein referred
to as "liabilities held with respect to" that Series or Class. Each allocation
of liabilities expenses, costs charges, and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all Series or Classes for all
purposes. Without limiting the foregoing, but subject to the right of the
Trustees 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 held with respect to such Series only and not
against the assets of the Trust generally or against the assets held with
respect to any other Series. Notice of this contractual limitation on
liabilities among Series may, in the Trustees' discretion, be set forth in the
certificate of trust of the Trust (whether originally or by amendment) as filed
or to be filed in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act, and upon the giving of such notice in the
certificate of trust, the statutory provisions of Section 3804 of the Delaware
Act relating to limitations on liabilities among Series (and the statutory
effect under section 3804 of setting forth such notice in the certificate of
trust) shall become applicable to the Trust and each Series. Any person
extending credit to, contracting with or having any claim against any Series may
look only to the assets of that Series to satisfy or enforce any debt, with
respect to that Series. No Shareholder or former Shareholder of any Series shall
have a claim on or any right to any assets allocated or belonging to any other
Series.
(c) Dividends, Distributions, Redemptions, and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution, including, without
limitation, any distribution paid upon termination of the Trust or of any Series
or Class with respect to, nor any redemption or repurchase of, the Shares of any
Series or Class, shall be effected by the Trust other than from the assets held
with respect to such Series, nor shall any Shareholder or any particular Series
or Class otherwise have any right or claim against the assets held with respect
to any other Series except to the extent that such Shareholder has such a right
or claim hereunder as a Shareholder of such other Series. 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
Shareholders.
(d) Equality. All the Shares of each particular Series shall
represent an equal proportionate interest in the assets held with respect to
that Series (subject to the liabilities held with respect to that Series or
Class thereof and such rights and preferences as may have been established and
designated with respect to any Class within such Series), and each share of any
particular Series shall be equal to each other Share of that Series. With
respect to any Class of a Series, each such Class shall represent interests in
the assets of that Series and have identical voting, dividend, liquidation and
other rights and the same terms and conditions, except that expenses allocated
to a Class may be borne solely by such Class as determined by the Trustees and a
class may have exclusive voting rights with respect to matters affecting only
that Class.
(e) Fractions. Any fractional Share of a Series or Class thereof,
shall carry proportionately all the rights and obligations of a whole Share of
that Series or Class, including rights with respect to voting, receipt of
dividends and distributions, redemption of Shares and termination of the Trust.
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(f) Exchange Privilege. The Trustees shall have the authority to
provide that the holders of Shares of any Series or Class shall have the right
to exchange said Shares for Shares of one or more other Series of Shares or
Class of Shares of the Trust or of other investment companies registered under
the 1940 Act in accordance with such requirements and procedures as may be
established by the Trustees.
(g) Combination of Series. The Trustees shall have the authority,
without the approval of the Shareholders of any Series or Class unless otherwise
required by applicable law, to combine the assets and liabilities held with
respect to any two or more Series or Classes into assets and liabilities held
with respect to a single Series or Class.
(h) Elimination of Series. At any time that there are no Shares
outstanding of any particular Series previously established and designated, the
Trustees may by resolution of a majority of the then Trustees abolish that
Series and rescind the establishment and designation thereof.
SECTION 7. INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder or
former Shareholder of any Series shall be held to be personally liable solely by
reason of his being or having been a Shareholder of such Series and not because
of his acts or omissions or for some other reason, the Shareholder or former
Shareholder (or his heirs, executors, administrators or other legal
representatives, or, in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled out of the assets belonging to the
applicable Series to be held harmless from and indemnified against all loss and
expense arising from such liability. The Trust, on behalf of the affected
Series, shall, upon request by the Shareholder, assume the defense of any claim
made against the Shareholder for any act or obligation of the Series and satisfy
any judgment thereon from the assets of the Series.
ARTICLE IV
TRUSTEES
SECTION 1. NUMBER; ELECTION AND TENURE.
(a) NUMBER. The number of Trustees constituting the Board of
Trustees shall be fixed from time to time by written instrument signed, or by
resolution approved at a duly constituted meeting, by a majority of the Board of
Trustees, provided however that the number of Trustees shall at all times be at
least one and no more than ten as determined, from time to time, by the Trustees
pursuant to Section 3 of this Article IV.
(b) ELECTION AND TENURE. To the extent required by applicable law,
the Shareholders may elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose. Any Trustee may be removed at any meeting of
Shareholders by a vote of sixty-six and two-thirds percent (66-2/3%) of the
outstanding Shares of the Trust. Each Trustee shall serve during the lifetime of
the Trust until he or she dies, resigns, has reached the mandatory retirement
age as set by the Trustees, is declared bankrupt or incompetent by a court of
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appropriate jurisdiction, or is removed, or, if sooner, until the next meeting
of Shareholders called for the purpose of electing Trustees and until the
election and qualification of his or her successor. In the event that less than
the majority of the Trustees holding office have been elected by the
Shareholders, the Trustees then in office shall call a meeting of Shareholders
for the election of Trustees. Any Trustee may resign at any time by written
instrument signed by him or her and delivered to any officer of the Trust or to
a meeting of the Trustees. Such resignation shall be effective upon receipt
unless specified to be effective at some other time. Except to the extent
expressly provided in a written agreement with the Trust, no Trustee resigning
and no Trustee removed shall have any right to any compensation for any period
following his or her resignation or removal, or any right to damages on account
of such removal.
(c) MANDATORY ELECTION BY SHAREHOLDERS. Notwithstanding the
foregoing provisions (a) and (b) of this Section 1 of Article IV, the Trustees
shall call a meeting of the Shareholders entitled to vote on the matter for the
election of one or more Trustees at such time or times as may be required in
order that the provisions of the 1940 Act or any resolution of the Trustees
which authorizes the issuance of a Class of Shares of beneficial interest other
than common Shares may be complied with, and the authority hereinabove provided
for the Trustees to appoint any successor Trustee or Trustees shall be
restricted if such appointment would result in failure of the Trust to comply
with any provision of the 1940 Act or any resolution of the Trustees which
authorizes the issuance of a Class of Shares of beneficial interest other than
common Shares.
(d) INITIAL TRUSTEES. Notwithstanding the provisions of this Section
1 of Article IV, the initial Trustee(s) shall be the person(s) who signature(s)
appear hereon.
SECTION 2. EFFECT OF TERMINATION OF SERVICE. The death, declination to
serve, resignation, retirement, removal or incapacity of one or more Trustees,
or all of them, shall not operate to annul the Trust or to revoke any existing
agency created pursuant to the terms of this Declaration of Trust. Whenever
there shall be fewer than the designated number of Trustees, until additional
Trustees are elected or appointed as provided herein to bring the total number
of Trustees equal to the designated number, the Trustees in office, regardless
of their number, shall, subject to compliance with the 1940 Act, have all the
powers granted to the Trustees and shall discharge all the duties imposed upon
the Trustees by this Declaration of Trust. As conclusive evidence of such
vacancy, a written instrument certifying the existence of such vacancy may be
executed by an officer of the Trust or by a majority of the Trustees. In the
event of the death, declination, resignation, retirement, removal, or incapacity
of all the then Trustees within a short period of time and without the
opportunity for at least one Trustee being able to appoint additional Trustees
to replace those no longer serving, the Trust's Manager(s) are empowered to
appoint new Trustees subject to the provisions of Section 16(a) of the 1940 Act.
SECTION 3. POWERS. Subject to the provisions of this Declaration of Trust,
the business of the Trust shall be managed by the Trustees, and the Trustees
shall have all powers necessary or convenient to carry out that responsibility
including the power to engage in securities transactions of all kinds on behalf
of the Trust. Without limiting the foregoing, the Trustees may: adopt By-Laws
not inconsistent with this Declaration of Trust providing for the management of
the affairs of the Trust and may amend and repeal such By-Laws to the extent
that such By-Laws do not reserve that right to the Shareholders; enlarge or
reduce the number of
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Trustees; remove any Trustee with or without cause at any time by written
instrument signed by a least sixty-six and two-thirds percent (66-2/3%) of the
number of Trustees prior to such removal, specifying the date when such removal
shall become effective, and fill vacancies caused by enlargement of their number
or by the death resignation, retirement or removal of a Trustee; elect and
remove, with or without cause, such officers and appoint and terminate such
agents as they consider appropriate; appoint from their own number and establish
and terminate one or more committees, consisting of two or more Trustees, that
may exercise the powers and authority of the Board of Trustees to the extent
that the Trustees so determine; employ one or more custodians of the assets of
the Trust and may authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the central
handling of securities or with a Federal Reserve Bank; employ an administrator
for the Trust and may authorize such administrator to employ subadministrators;
employ a Manager to the Trust and may authorize such manager to employ
subadvisers; retain a transfer agent or a Shareholder servicing agent, or both;
provide for the issuance and distribution of Shares by the Trust directly or
through one or more Principal Underwriters or otherwise; redeem, repurchase and
transfer Shares pursuant to applicable law; set record dates for the
determination of Shareholders with respect to various matters; declare and pay
dividends and distributions to Shareholders of each Series from the assets of
such Series; and in general delegate such authority as they consider desirable
to any officer of the Trust, to any committee of the Trustees and to any agent
or employee of the Trust or to any such custodian, transfer or Shareholder
servicing agent, Principal Underwriter or Manager. 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 of Trust, the
presumption shall be in favor of a grant of power to the Trustees. Unless
otherwise specified herein or in the By-Laws or required by law, any action by
the Trustees shall be deemed effective if approved or taken by a majority of the
Trustees present at a meeting of Trustees at which a quorum of Trustees is
present, within or without the state of Delaware.
Without limiting the foregoing, the Trustees shall have the power and
authority to cause the Trust (or to act on behalf of the Trust):
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, assign, transfer, exchange, distribute, write options on, lend or
otherwise deal in or dispose of contracts for the future acquisition or delivery
of fixed income or other securities, and securities of every nature and kind,
including, without limitation, all types of bonds, debentures, stocks,
negotiable or non-negotiable instruments, obligations, participations, evidences
of indebtedness, certificates of deposit or indebtedness, commercial papers,
repurchase agreements, bankers' acceptances, and other securities of any kind,
issued, created, guaranteed, or sponsored by any and all Persons, including
without limitation, states, territories, and possessions of the United States
and the District of Columbia and any political subdivision, agency, or
instrumentality thereof, and foreign government or any political subdivision of
the United States Government or any foreign government, or any international
instrumentality, or by any bank or savings institution, or by any corporation or
organization organized under the laws of the United States or of any state,
territory, or possession thereof, or by any corporation or organization
organized under any foreign law, or in "when issued" contracts for any such
securities; change the investments of the assets of the Trust; 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,
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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 instruments;
(b) To sell, exchange lend, pledge, mortgage, hypothecate, lease, or
write options (including, options on futures contracts) in respect to or
otherwise deal in any property rights relating to any or all of the assets of
the Trust or any Series;
(c) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such Person or Persons as the Trustees
shall deem proper, granting to such Person or Persons such power and discretion
with relation to securities or property as the Trustees shall deem proper;
(d) To exercise powers and right of subscription or otherwise which
in any manner arise out of ownership or securities;
(e) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in its own
name or in the name of a custodian or subcustodian or a nominee or nominees or
otherwise;
(f) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(g) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay and to pay, such portion of the
expenses and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(h) To compromise, arbitrate or otherwise, adjust claims in favor of
or against the Trust or any matter in controversy, including, but not limited
to, claims for taxes;
(i) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes and in connection therewith issue notes or other
evidence of indebtedness; and to mortgage and pledge the Trust Property or any
part thereof to secure any or all of such indebtedness;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust Property or any part thereof to secure any of or all of such obligations;
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(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance polices insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers, Principal Underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding, being or having held
any such office or position, or by reason of any action, alleged to have been
taken or omitted by any such Person as Trustee, officer employee, agent,
investment adviser, Principal Underwriter, or independent contractor, including
any action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such Person against
liability;
(m) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits, for any or
all of the Trustees, officers, employees and agents of the Trust;
(n) To operate as and carry out the business of an investment
company, and exercise all the powers necessary or appropriate to the conduct of
such operations;
(o) To enter into contracts of any kind and description;
(p) To employ as custodian of any assets of the Trust one or more
banks, trust companies or companies that are members of a national securities
exchange or such other entities as the Commission may permit as custodians of
the Trust, subject to any conditions set forth in this Declaration of Trust or
in the By-Laws;
(q) To employ auditors, counsel or other agents of the Trust,
subject to any conditions set forth in this Declaration of Trust or in the
By-Laws;
(r) To interpret the investment policies, practices, or limitations
of any Series or Class; and
(s) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct investment purposes, and
with separate Shares representing beneficial interests in such Series, and to
establish separate Classes, all in accordance with the provisions of Article
III;
(t) To the full extent permitted by section 3804 of the Delaware
Act, to allocate assets, liabilities and expenses of the Trust to a particular
Series and liabilities and expenses to a particular Class or to apportion the
same between or among two or more Series or Classes, provided that all
liabilities or expenses incurred by a particular Series or Class shall be
payable solely out of the assets belonging to that Series or Class as provided
for in Article III;
(u) subject to the 1940 Act, to engage in any other lawful act or
activity in which a business trust organized under the Delaware Act may engage.
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The Trust shall not be limited to investing in obligations maturing before
the possible termination of the Trust or one or more of its Series. The Trust
shall not in any way be bound or limited by any present or future law or custom
in regard to investment by fiduciaries. The Trust shall not be required to
obtain any court order to deal with any assets of the Trust or take any other
action hereunder. The Trust may pursue its investment program and any other
powers as set forth in this Section 3 of Article IV either directly or through
one or more subsidiary vehicles at the discretion of the Trustees.
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are authorized
to pay or cause to be paid out of the principal or income of the Trust, or
partly out of the principal and partly out of income, as they deem fair, all
expenses, fees, charges, taxes and liabilities incurred or arising in connection
with the Trust, or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, investment adviser or manager,
Principal Underwriter, auditors, counsel, custodian, transfer agent, Shareholder
servicing agent, and such other agents or independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur,
which expenses, fees, charges, taxes and liabilities shall be allocated in
accordance with Article III, section 6 hereof.
SECTION 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Trustees shall have
the power, as frequently as they may determine, to cause each Shareholder, or
each Shareholder of any particular Series, to pay directly, in advance or
arrears, expenses of the Trust as described in Section 4 of this Article IV
("Expenses"), in an amount fixed from time to time by the Trustees, by setting
off such Expenses due from such Shareholder from declared but unpaid dividends
owed such Shareholder and/or by reducing the number of Shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such Expenses due from such Shareholder,
provided that the direct payment of such Expenses by shareholders is permitted
under applicable law.
SECTION 6. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets of
the Trust shall at all times be considered as vested in the Trust, except that
the Trustees shall have 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 the
Trust, or in the name of any other Person as nominee, on such terms as the
Trustees may determine. 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 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. Such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered.
SECTION 7. SERVICE CONTRACTS.
(a) Subject to such requirements and restrictions as may be set
forth under federal and/or state law and in the By-Laws, including, without
limitation, the requirements of Section 15 of the 1940 Act, the Trustees may, at
any time and from time to time, contract for exclusive or nonexclusive advisory,
management and/or administrative services for the Trust or
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for any Series (or Class thereof) with any corporation, trust, association, or
other organization or person; and any such contract may contain such other terms
as the Trustees may determine, including, without limitation, authority for the
Manager to supervise and direct the investment of all assets held, and to
determine from time to time without prior consultation with the Trustees what
investments shall be purchased, held sold or exchanged and what portion, if any,
of the assets of the Trust shall be held uninvested and to make changes in the
Trust's investments; authority for the Manager(s) or administrator to delegate
certain or all of its duties under such contracts to qualified investment
advisers and administrators or such other activities as may specifically be
delegated to such party.
(b) The Trustees may also, at any time and from time to time,
contract with any corporation, trust, association, or other organization,
appointing it exclusive or nonexclusive distributor or Principal Underwriter for
the Shares of one or more of the Series (or Classes) or other securities to be
issued by the Trust. Every such contract shall comply with such requirements and
restrictions as may be set forth under federal and/or state law and in the
By-Laws, including, without limitation, the requirements of Section 15 of the
1940 Act; and any such contract may contain such other terms as the Trustees may
determine.
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent and/or
Shareholder servicing agent for the Trust or one or more of its Series. Every
such contract shall comply with such requirements and restrictions as may be set
forth under federal and/or state law and in the By-Laws or stipulated by
resolution of the Trustees.
(d) Subject to applicable law, the Trustees are further empowered,
at any time and from time to time, to contract with any entity to provide such
other services to the Trust or one or more of the Series, as the Trustees
determine to be in the best interests of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the
Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, Principal
Underwriter, distributor, or affiliate or agent of or
for any corporation, trust, association, or other
organization, or for any parent or affiliate of any
organization with which an advisory, management, or
administration contract, or Principal Underwriter's or
distributor's contract, or transfer agent, Shareholder
servicing agent or other type of service contract may
have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a
Shareholder or has an interest in the Trust; or that
(ii) any corporation, trust, association or other
organization with which an advisory, management, or
administration contract or Principal Underwriter's or
distributor's contract, or transfer agent or
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Shareholder servicing agent contract may have been or
may hereafter be made also has an advisory, management,
or administration contract, or Principal Underwriter's
or distributor's or other service contract with one or
more other corporations, trusts, associations, or other
organizations, or has other business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust or its
shareholders, provided approval of each such contract is made pursuant to the
requirements of the 1940 Act.
SECTION 8. TRUSTEES AND OFFICERS AS SHAREHOLDERS. Any Trustee, officer or
agent of the Trust may acquire, own and dispose of Shares to the same extent as
if he were not a Trustee, officer or agent; and the Trustees may issue and sell
and cause to be issued and sold Shares to, and repurchase such Shares from, any
such Person or any firm or company in which such Person is interested, subject
only to the general limitations contained herein or in the By-Laws relating to
the sale and repurchase of such Shares.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 1. VOTING POWERS, MEETINGS, NOTICE, AND RECORD DATES. The
Shareholders shall have power to vote only: (i) for the election or removal of
Trustees as provided in Article IV, Section 1 hereof; and (ii) with respect to
such additional matters relating to the Trust as may be required by applicable
law, this Declaration of Trust, the By-Laws or any registration of the Trust
with the Commission (or any successor agency), or as the Trustees may consider
necessary or desirable. Each whole share shall be entitled to one vote as any
matter on which it is entitled to vote and each fractional share shall be
entitled to a proportionate fractional vote. Notwithstanding any other provision
of this Declaration of Trust, on any matters submitted to a vote of the
Shareholders, all Shares of the Trust then entitled to vote shall be voted in
aggregate except: (i) when required by the 1940 Act, Shares shall be voted by
individual Series; (ii) when the matter involves the termination of a Series or
any other action that the Trustees have determined will affect only the
interests of one or more Series and a Shareholder vote with respect to such
action is sought, then only Shareholders of such Series shall be entitled to
vote thereon; and (iii) when the matter involves any action that the Trustees
have determined will affect only one or more Classes and a Shareholder vote with
respect to such action is sought, then only the Shareholders of such Class or
Classes shall be entitled to vote thereon. There shall be no cumulative voting
in the election of Trustees. Shares may be voted in person or by proxy. A proxy
may be given by any means acceptable under applicable law. The By-Laws may
provide that proxies may also, or may instead, be given by an electronic or
telecommunications device or in any other manner. Notwithstanding anything else
contained herein or in the By-Laws, in the event a proposal by anyone other than
the officers or Trustees of the Trust is submitted to a vote of the Shareholders
of one or more Series or Classes thereof or of the Trust, or in the event of any
proxy contest or proxy solicitation or proposal in opposition to any proposal by
the officers or Trustees of the Trust, Shares may be voted only by written proxy
or in
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person at a meeting. Until Shares are issued, the Trustees may exercise all
rights of Shareholders and may take any action required by law, this Declaration
of Trust or the By-Laws to be taken by the Shareholders. Meetings of the
Shareholders shall be called and notice thereof and record dates therefor shall
be given and set as provided in the By-Laws.
SECTION 2. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
thirty-three and one-third percent (33-1/3%) of the Shares entitled to vote
shall constitute a quorum at a Shareholders' meeting. When any one or more
Series (or Classes) is to vote as a single class separate from any other Shares,
thirty-three and one-third percent (33-1/3%) of the Shares of each such Series
(or Class) entitled to vote shall constitute a quorum at a Shareholders' meeting
of that Series (or Class). Except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable law, when
a quorum is present at any meeting, a majority of the Shares voted shall decide
any questions and a plurality of the Shares voted shall elect a Trustee,
provided that where any provision of law or of this Declaration of Trust
requires that the holders of any Series shall vote as a Series (or that holders
of a Class shall vote as a Class), then a majority of the Shares of that Series
(or Class) voted on the matter (or a plurality with respect to the election of a
Trustee) shall decide that matter insofar as that Series (or Class) is
concerned.
SECTION 3. RECORD DATES. For the purpose of determining the Shareholders
of any Series (or Class) who are entitled to receive payment of any dividend or
of any other distribution, the Trustees may from time to time fix a date, which
shall be before the date for the payment of such dividend or such other payment,
as the record date for determining the Shareholders of such series (or Class)
having the right to receive such dividend or distribution. without fixing a
record date, the Trustees may for distribution purposes close the register or
transfer books for one or more Series (or Classes) at any time prior to the
payment of a distribution. Nothing in this Section shall be construed as
precluding the Trustees from setting different record dates for different Series
(or Classes).
SECTION 4. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
NET ASSET VALUE, DISTRIBUTIONS AND REPURCHASES
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. Subject to applicable law and Article III, Section 6 hereof, the
Trustees, in their absolute discretion, may prescribe and shall set forth in the
By-Laws or in a duly adopted vote of the Trustees such bases and time for
determining the per Share or net asset value of the Shares of any Series or
Class or net income attributable to the Shares of any Series or Class, or the
declaration and payment of dividends and distributions on the Shares of any
Series or Class, as they may deem necessary or desirable.
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<PAGE> 19
SECTION 2. REPURCHASES.
(a) From time to time the Trust may repurchase its Shares, all upon
such terms and conditions as may be determined by the Trustees and subject to
any applicable provisions of the 1940 Act or any exemption therefrom. The Trust
may require Shareholders to pay a withdrawal charge, a sales charge, or any
other form of charge to the Trust, to the Principal Underwriter or distributor
or to any other person designated by the Trustees upon repurchase of Shares in
such amount as shall be determined from time to time by the Trustees. The Trust
may also charge a repurchase fee in such amount as may be determined from time
to time by the Trustees.
The Trust may repurchase Shares upon the appropriately verified
application of the record holder thereof (or upon such other form of request as
the Trustees may determine) at such office or agency as may be designated from
time to time for that purpose in the Trust's then effective registration
statement under the Securities Act of 1933. The Trustees may from time to time
specify additional conditions, not inconsistent with the 1940 Act or any
exemption therefrom regarding the repurchase of Shares in the Trust's then
effective registration statement under the Securities Act of 1933.
(b) Subject to Subsection 2(a) of this Article VI, Shares may be
repurchased at their net asset value or at such other price as is in compliance
with the 1940 Act or any exemption therefrom, which may be reduced by any
withdrawal charge or sales charge authorized by the Trustees. Net asset value
shall be determined as set forth in Section 1 of this Article VI as of such time
as the Trustees shall have theretofore prescribed by resolution.
(c) Payment for such Shares shall be made in cash or in property out
of the assets of the relevant Series of the Trust to the Shareholder of record
at such time and in the manner, not inconsistent with the 1940 Act or other
applicable laws, as may be specified from time to time in the Trust's then
effective registration statement under the Securities Act of 1933.
(d) If the Trustees shall, at any time and in good faith, determine
that direct or indirect ownership of Shares of any Series or Class thereof has
or may become concentrated in any Person to an extent that would disqualify any
Series as a regulated investment company under the Internal Revenue Code of
1986, as amended (or any successor statute thereto), then the Trustees shall
have the power (but not the obligation) by such means as they deem equitable (i)
to call for the tender for redemption or repurchase by any such Person of a
number, or principal amount, of Shares sufficient to maintain or bring the
direct or indirect ownership of Shares into conformity with the requirements for
such qualification, (ii) to refuse to transfer or issue Shares of any Series or
Class thereof to such Person whose acquisition of the Shares in question would
result in such disqualification, or (iii) to take such other actions as they
deem necessary and appropriate to avoid such disqualification. Any such
redemption or repurchase shall be effected at the price and in the manner
provided in this Article VI.
(e) The holders of Shares shall upon demand disclose to the Trustees
in writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the provisions of the
Internal Revenue Code of 1986, as
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amended (or any successor statute thereto), or to comply with the requirements
of any other taxing authority.
ARTICLE VII
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION OF TRUSTEES
SECTION 1. COMPENSATION. The Trustees in such capacity shall be entitled
to reasonable compensation from the Trust and they may fix the amount of such
compensation. However, the Trust will not compensate those Trustees who are
Interested Persons of the Trust, its Manager, subadvisers, distributor or
Principal Underwriter. Notwithstanding the foregoing, the Trust may reimburse
all Trustees and officers of the Trust for travel and reasonable out of pocket
expenses incurred in connection with their service as Trustee or officer of the
Trust. Nothing herein shall in any way prevent the employment of an Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for such services by the Trust.
SECTION 2. LIMITATION OF LIABILITY AND INDEMNIFICATION.
(a) A Trustee or officer of the Trust, when acting in such
capacity, shall not be personally liable to any person other than the Trust or a
beneficial owner for any act, omission or obligation of the Trust or any Trustee
or officer. A Trustee or officer shall not be liable for any act or omission or
any conduct whatsoever in his capacity as Trustee or officer, provided that
nothing contained herein or in the Delaware Act shall protect any Trustee
against any liability to the Trust or to Shareholders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee or officer hereunder.
(b) Subject to the exceptions and limitations contained in
Subsection 3(b) of this Article:
(i) every person who is, or has been, a Trustee or officer
of the Trust (hereinafter referred to as a "Covered
Person") shall be indemnified by the Trust to the
fullest extent permitted by law against liability and
against all expenses reasonably incurred or paid by him
in connection with any claim, action, suit or proceeding
in which he becomes involved as a party or otherwise by
virtue of his being or having been a Trustee or officer
and against amounts paid or incurred by him in the
settlement thereof;
(ii) the words "claim," "action," "suit," or "proceeding"
shall apply to all claims, actions, suits or proceedings
(civil, criminal or other, including appeals), actual or
threatened while in office or thereafter, and the words
"liability" and "expenses" shall include, without
limitation, attorneys' fees, costs, judgments, amounts
paid in settlement, fines, penalties and other
liabilities.
(c) No indemnification shall be provided hereunder to a Covered
Person:
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(i) who shall have been adjudicated by a court or body
before which the proceeding was brought (A) to be liable
to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his
office or (B) not to have acted in good faith in the
reasonable belief that his action was in the best
interest of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Trustee or officer did not
engage in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved
in the conduct of his office (A) by the court or other
body approving the settlement, (B) by at least a
majority of those Trustees who are neither Interested
Persons of the Trust nor are parties to the matter based
upon a review of readily available facts (as opposed to
a full trial-type inquiry), or (C) by written opinion of
independent legal counsel based upon a review of readily
available facts (as opposed to a full trial-type
inquiry); provided, however, that any Shareholder may,
by appropriate legal proceedings, challenge any such
determination by the Trustees or by independent counsel.
(d) The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable, shall not be
exclusive of or affect any other rights to which any Covered Person may now or
hereafter be entitled, shall continue as to a person who has ceased to be a
Covered Person and shall inure to the benefit of the heirs, executors and
administrators of such a person. Nothing contained herein shall affect any
rights to indemnification to which Trust personnel, other than Covered Persons,
and other persons may be entitled by contract or otherwise under law.
(e) Expenses in connection with the preparation and presentation
of a defense to any claim, action, suit or proceeding of the character described
in Subsection 2(a) of this Article may be paid by the Trust or Series from time
to time prior to final disposition thereof upon receipt of an undertaking by or
on behalf of such Covered Person that such amount will be paid over by him to
the Trust or Series if it is ultimately determined that he is not entitled to
indemnification under this Section 3; provided, however, that either (i) such
Covered Person shall have provided appropriate security for such undertaking,
(ii) the Trust is insured against losses arising out of any such advance
payments, or (iii) either a majority of the Trustees who are neither Interested
Persons of the Trust nor parties to the matter, or independent legal counsel in
a written opinion, shall have determined, based upon a review of readily
available facts (as opposed to a trial-type inquiry or full investigation), that
there is reason to believe that such Covered Person will be found entitled to
indemnification under Section 3.
(f) All persons extending credit to, contracting with or having
any claim against the Trust shall look only to the assets of the appropriate
Series of the Trust for payment under such credit, contract, or claim; and
neither the Trustees nor the Shareholders, nor any of
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the Trust's officers, employees, or agents, whether past, present, or future,
shall be personally liable therefor.
(g) Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees by any of them in connection with the Trust
shall conclusively be deemed to have been executed or done only in or with
respect to his or their capacity as Trustee or Trustees, and such Trustee or
Trustees shall not be personally liable thereon. At the Trustees' discretion,
any note, bond, contract, instrument, certificate or undertaking made or issued
by the Trustees or by any officer or officers may give notice that the
Certificate of Trust is on file in the Office of the Secretary of State of the
State of Delaware and that a limitation on liability of Series exists and such
note, bond, contract, instrument, certificate or undertaking may, if the
Trustees so determine, recite that the same was executed or made on behalf of
the Trust by a Trustee or Trustees in such capacity and not individually and
that the obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only on the assets and property of the
Trust or a Series thereof, and may contain such further recital as such Person
or Persons may deem appropriate. The omission of any such notice or recital
shall in no way operate to bind any Trustees, officer, or Shareholders
individually.
SECTION 3. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY.
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. A Trustee shall be liable to the Trust and to
any Shareholder solely for his or her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee, and shall not be liable for errors of judgment or mistakes of
fact or law. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, and shall be
under no liability for any act or omission in accordance with such advice nor
for failing to follow such advice. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
SECTION 4. INSURANCE. The Trustees shall be entitled and empowered to the
fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee, officer, employee, or agent of the Trust in connection with
any claim, action, suit, or proceeding in which he or she may become involved by
virtue of his or her capacity or former capacity as a Trustee of the Trust.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
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SECTION 2. TERMINATION OF THE TRUST OR ANY SERIES OR CLASS.
(a) Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust may be terminated at any time by vote of
sixty-six and two-thirds percent (66-2/3%) of the outstanding Shares of each
Series entitled to vote, voting separately by Series, or upon the approval of
sixty-six and two-thirds percent (66-2/3%) of the Trustees by written notice to
the Shareholders. Any Series of Shares or Class thereof may be terminated at any
time by vote of sixty-six and two-thirds percent (66-2/3%) of the outstanding
Shares of such Series or Class entitled to vote or upon the approval of
sixty-six and two-thirds percent (66-2/3%) of the Trustees by written notice to
the Shareholders of such Series or Class.
(b) Upon the requisite Shareholder vote or action by the approval
of Trustees to terminate the Trust or any one or more Series of Shares or any
Class thereof, after paying or otherwise providing for all charges, taxes,
expenses, and liabilities, whether due or accrued or anticipated, of the Trust
or of the particular Series or any Class thereof as may be determined by the
Trustees, the Trust shall in accordance with such procedures as the Trustees may
consider appropriate reduce the remaining assets of the Trust or of the affected
Series or Class to distributable form in cash or Shares (if any series remain)
or other securities, or any combination thereof, and distribute the proceeds to
the Shareholders of the Series or Classes involved, ratably according to the
number of Shares of such Series or Class held by the shareholders of such Series
or Class on the date of distribution. Thereupon, the Trust or any affected
Series or Class shall terminate and the Trustees and the Trust shall be
discharged of any and all further liabilities and duties relating thereto or
arising therefrom, and the right, title, and interest of all parties with
respect to the Trust or such Series or Class shall be canceled and discharged.
(c) Upon termination of the Trust, following completion of winding
up of its business, the Trustees shall cause a certificate of cancellation of
the Trust's Certificate of Trust to be filed in accordance with the Delaware
Act, which Certificate of Cancellation may be signed by any one Trustee.
SECTION 3. REORGANIZATION.
(a) Notwithstanding anything else herein, the approval of
sixty-six and two-thirds percent (66-2/3%) of the Trustees shall be sufficient,
without Shareholder approval unless such approval is required by applicable law,
to (i) cause the Trust to merge or consolidate with or into one or more trusts
(or series thereof to the extent permitted by law), partnerships, associations,
corporations or other business entities (including trusts, partnerships,
associations, corporations or other business entities created by the Trustees to
accomplish such merger or consolidation so long as the surviving or resulting
entity is an investment company as defined in the 1940 Act, or is a series
thereof, that will succeed to or assume the Trust's registration under the 1940
Act and that is formed, organized, or existing under the laws of the United
States or of a state, commonwealth, possession or colony of the United States,
unless otherwise permitted under the 1940 Act, (ii) cause any one or more Series
(or Classes) of the Trust to merge or consolidate with or into any one or more
other Series (or Classes) of the Trust, one or more trusts (or series or classes
thereof to the extent permitted by law), partnerships, associations,
corporations, (iii) cause the Shares to be exchanged under or pursuant to any
state or federal statute to the extent permitted by law, (iv) cause the Trust to
reorganize as a corporation, limited
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liability company or limited liability partnership under the laws of Delaware or
any other state or jurisdiction, or (v) cause the Trust to distribute the assets
of the Trust into and through a liquidating trust to effect the liquidation of
the Trust, to the extent permitted under the 1940 Act. Any agreement of merger
or consolidation or exchange or certificate or merger may be signed by of the
Trustees and facsimile signatures conveyed by electronic or telecommunication
means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration of Trust, an agreement of merger or consolidation
approved by sixty-six and two-thirds percent (66-2/3%) the Trustees in
accordance with this Section 3 may (i) effect any amendment to the governing
instrument of the Trust or (ii) effect the adoption of a new governing
instrument of the Trust if the Trust is the surviving or resulting trust in the
merger or consolidation.
(c) The conversion of the Trust from a "closed-end company" to an
"open-end company," as those terms are defined in Sections 5(a)(2) and 5(a)(1),
respectively, of the 1940 Act, shall require the affirmative vote or consent of
the holders of two-thirds of each Class of Shares outstanding and entitled to
vote (with each Class separately voting thereon or consenting thereto as a
separate Class). Such affirmative vote or consent shall be in addition to the
vote or consent of the holders of the Shares otherwise required by law or by any
agreement between the Trust and any national securities exchange. However, if
such conversion is unanimously recommended by the Trustees, the vote or written
consent of the holders of a majority of the outstanding Shares of the Trust
(which voting securities shall, unless otherwise provided by the Trustees, vote
together on the matter as a single Class) shall be sufficient to authorize such
conversion. Notwithstanding any other provision in this Declaration of Trust,
this paragraph may only be amended by the affirmative vote or consent of the
holders of two-thirds of each Class of the Shares of the Trust outstanding and
entitled to vote (with each Class separately voting thereon or consenting
thereto as a separate Class), unless such amendment is unanimously recommended
by the Trustees, in which case the vote or written consent of the holders of a
majority of the outstanding Shares of the Trust (which voting securities shall,
unless otherwise provided by the Trustees, vote together on the matter as a
single Class) shall be sufficient to authorize such amendment.
(d) The approval of sixty-six and two-thirds percent (66-2/3%) of
the Trustees shall be sufficient to cause the Trust, or any series thereof, to
sell and convey all or substantially all of the assets of the Trust or any
affected series to another series of the Trust or to another entity to the
extent permitted under the 1940 Act, for adequate consideration, which may
include the assumption of all outstanding obligations, taxes and other
liabilities, accrued or contingent, of the Trust or any affected series, and
which may include Shares or interest in such series of the Trust, entity, or
series thereof. Without limiting the generality of the foregoing, this provision
may be utilized to permit the Trust to pursue its investment program through one
or more subsidiary vehicles or to operate in a master-feeder structure
SECTION 4. AMENDMENTS. Except as specifically provide in this Section 4,
approval of sixty-six and two-thirds percent (66-2/3%) the Trustees shall,
without Shareholder vote, be sufficient to restate, amend, or otherwise
supplement this Declaration of Trust. Shareholders shall have the right to vote
on (i) any amendment that would affect their right to vote granted in
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Article V, Section 1 hereof, (ii) any amendment to this Section 4 of Article
VIII; (iii) any amendment that may require their vote under applicable law or by
the Trust's registration statement, as filed with the Commission, and (iv) any
amendment submitted to them for their vote by the Trustees. Any amendment
required or permitted to be submitted to the Shareholders that, as the Trustees
determine, shall affect the Shareholders of one or more Series shall be
authorized by a vote of the Shareholders of each Series affected and no vote of
Shareholders of a Series not affected shall be required. Notwithstanding
anything else herein, no amendment hereof shall limit the rights to insurance
provided by Article VII, Section 4 hereof with respect to any acts or omissions
of Persons covered thereby prior to such amendment nor shall any such amendment
limit the rights to indemnification referenced in Article VII, Section 2 hereof
as provided in the By-Laws with respect to any actions or omissions of Persons
covered thereby prior to such amendment. The Trustees may, without Shareholder
vote, restate, amend, or otherwise supplement the certificate of Trust as they
deem necessary or desirable.
SECTION 5. FILING OF COPIES, REFERENCES, HEADINGS. The original or a copy
of this instrument and of each restatement and/or amendment hereto shall be kept
at the office of the Trust where it may be inspected by any Shareholder. Anyone
dealing with the Trust may rely on a certificate by an officer of the Trust as
to whether or not any such restatements and/or amendments have been made and as
to any matters in connection with the Trust hereunder; and, with the same effect
as if it were the original, may rely on a copy certified by an officer of the
Trust to be a copy of this instrument or of any such restatements and/or
amendments. In this instrument and in any such restatements and/or amendments,
references to this instrument, and all expressions such as "herein," "hereof,"
and "hereunder," shall be deemed to refer to this instrument as amended or
affected by any such restatements and/or amendments. 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. This instrument may be executed in any number of counterparts each
of which shall be deemed an original.
SECTION 6. APPLICABLE LAW.
(a) The Trust is created under, and this Declaration of Trust is
to be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware. The Trust shall be of the type commonly called a business
trust, and without limiting the provisions hereof, the Trust specifically
reserves the right to exercise any of the powers or privileges afforded to
business trusts or actions that may be engaged in by business trusts under the
Delaware Act, and the absence of a specific reference herein to any such power,
privilege, or action shall not imply that the Trust may not exercise such power
or privilege or take such actions.
(b) Notwithstanding the first sentence of Section 6(a) of this
Article VIII, there shall not be applicable to the Trust, the Trustees, or this
Declaration of Trust either the provisions of section 3540 of Title 12 of the
Delaware Code or any provisions of the laws (statutory or common) of the State
of Delaware (other than the Delaware Act) pertaining to trusts that relate to or
regulate: (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges; (ii) affirmative
requirements to post bonds for trustees, officers, agents, or employees of a
trust; (iii) the necessity for obtaining a court or other
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governmental approval concerning the acquisition, holding, or disposition of
real or personal property; (iv) fees or other sums applicable to trustees,
officers, agents or employees of a trust; (v) the allocation of receipts and
expenditures to income or principal; (vi) restrictions or limitations on the
permissible nature, amount, or concentration of trust investments or
requirements relating to the titling, storage, or other manner of holding of
trust assets; or (vii) the establishment of fiduciary or other standards or
responsibilities or limitations on the acts or powers or liabilities or
authorities and powers of trustees that are inconsistent with the limitations or
liabilities or authorities and powers of Trustees set forth or referenced in
this Declaration of Trust.
SECTION 7. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration of Trust are severable, and
if the Trustees shall determine, with the advice of counsel, that any such
provision is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended (or any successor
statute thereto), and the regulations thereunder, the Delaware Act or with other
applicable laws and regulations, the conflicting provision shall be deemed never
to have constituted a part of this Declaration of Trust; provided, however, that
such determination shall not affect any of the remaining provisions of this
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration of Trust in any jurisdiction.
SECTION 8. BUSINESS TRUST ONLY. It is the intention of the Trustees to
create a business trust pursuant to the Delaware Act. 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 business trust pursuant to the Delaware Act. Nothing in this Declaration of
Trust shall be construed to make the Shareholders, either by themselves or with
the Trustees, partners, or members of a joint stock association.
SECTION 9. WRITINGS. To the fullest extent permitted by applicable laws
and regulations:
(a) all requirements in this Declaration of Trust or in the
By-Laws that any action be taken by means of any writing, including, without
limitation, any written instrument, any written consent or any written
agreement, shall be deemed to be satisfied by means of any electronic record in
such form that is acceptable to the Trustees; and
(b) all requirements in this Declaration of Trust or in the
By-Laws that any writing be signed shall be deemed to be satisfied by any
electronic signature in such form that is acceptable to the Trustees.
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IN WITNESS WHEREOF, the Trustee named below does hereby make and enter
into this Declaration of Trust as of the 20th day of November, 2000.
---------------------------------------
Peter H. Mattoon
as Trustee of Scudder Weisel Capital
Entrepreneurs Fund and not individually
88 Kearny Street
Suite 2100
San Francisco, CA 94104
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