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EXHIBIT 99.A.2
ANNUITY BOARD FUNDS TRUST
TRUST INSTRUMENT
February 29, 2000
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TABLE OF CONTENTS
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ARTICLE I.........................................................................................................1
ARTICLE II........................................................................................................2
SECTION 1. MANAGEMENT OF THE TRUST............................................................................2
SECTION 2. INITIAL TRUSTEES; NUMBER AND ELECTION OF TRUSTEES..................................................3
SECTION 3. TERM OF OFFICE.....................................................................................3
SECTION 4. VACANCIES..........................................................................................3
SECTION 5. CHAIRMAN...........................................................................................3
SECTION 6. ACTION BY THE TRUSTEES.............................................................................3
SECTION 7. OWNERSHIP OF TRUST PROPERTY........................................................................4
SECTION 8. EFFECT OF TRUSTEES NOT SERVING.....................................................................4
SECTION 9. TRUSTEES, ETC. AS SHAREHOLDERS.....................................................................4
ARTICLE III.......................................................................................................4
SECTION 1. POWERS.............................................................................................4
SECTION 2. CERTAIN TRANSACTIONS...............................................................................7
ARTICLE IV........................................................................................................7
SECTION 1. ESTABLISHMENT OF SERIES OR CLASS...................................................................7
SECTION 2. SHARES.............................................................................................8
SECTION 3. INVESTMENT IN THE TRUST............................................................................8
SECTION 4. ASSETS AND LIABILITIES OF SERIES...................................................................8
SECTION 5. OWNERSHIP AND TRANSFER OF SHARES...................................................................9
SECTION 6. STATUS OF SHARES; LIMITATION OF SHAREHOLDER LIABILITY..............................................9
ARTICLE V........................................................................................................10
SECTION 1. DISTRIBUTIONS.....................................................................................10
SECTION 2. REDEMPTIONS.......................................................................................10
SECTION 3. DETERMINATION OF NET ASSET VALUE..................................................................10
SECTION 4. DISCLOSURE REQUIREMENTS FOR SHAREHOLDERS..........................................................11
ARTICLE VI.......................................................................................................11
SECTION 1. VOTING POWERS.....................................................................................11
SECTION 2. MEETINGS OF SHAREHOLDERS..........................................................................11
SECTION 3. QUORUM; REQUIRED VOTE.............................................................................11
ARTICLE VII......................................................................................................12
SECTION 1. INVESTMENT ADVISER................................................................................12
SECTION 2. PRINCIPAL UNDERWRITER.............................................................................12
SECTION 3. TRANSFER AGENCY, SHAREHOLDER SERVICES, AND ADMINISTRATION AGREEMENTS..............................12
SECTION 4. CUSTODIAN.........................................................................................12
SECTION 5. PARTIES TO CONTRACTS WITH SERVICE PROVIDERS.......................................................13
ARTICLE VIII.....................................................................................................13
ARTICLE IX.......................................................................................................14
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SECTION 1. LIMITATION OF LIABILITY...........................................................................14
SECTION 2. INDEMNIFICATION...................................................................................14
SECTION 3. INDEMNIFICATION OF SHAREHOLDERS...................................................................15
ARTICLE X........................................................................................................16
SECTION 1. INVESTMENT OBJECTIVES, POLICIES AND RESTRICTIONS..................................................16
SECTION 2. INVESTMENT LIMITATIONS............................................................................16
SECTION 3. AMENDMENT OF INVESTMENT OBJECTIVES, POLICIES AND RESTRICTIONS.....................................16
ARTICLE XI.......................................................................................................16
SECTION 1. TRUST NOT A PARTNERSHIP...........................................................................16
SECTION 2. TRUSTEE ACTION; EXPERT ADVICE; NO BOND OR SURETY..................................................17
SECTION 3. RECORD DATES......................................................................................17
SECTION 4. TERMINATION OF THE TRUST..........................................................................17
SECTION 5. TRUST INSTRUMENT..................................................................................17
SECTION 6. APPLICABLE LAW....................................................................................18
SECTION 7. AMENDMENTS........................................................................................18
SECTION 8. FISCAL YEAR.......................................................................................18
SECTION 9. SEVERABILITY......................................................................................18
SECTION 10. CONSENT TO JURISDICTION...........................................................................19
SECTION 11. COUNTERPARTS......................................................................................19
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ANNUITY BOARD FUNDS TRUST
TRUST INSTRUMENT
This TRUST INSTRUMENT is made on February 29, 2000, by the Trustees, to
establish a business trust for the investment and reinvestment of funds
contributed to the Trust by investors. The Trustees declare that all money and
property contributed to the Trust shall be held and managed in trust pursuant to
this Trust Instrument. The name of the Trust created by this Trust Instrument is
Annuity Board Funds Trust. The purposes of this Trust are to hold and invest:
(i) assets of various retirement and other employee benefit plans administered
for the benefit of ministers and employees of churches, associations,
conventions, agencies, institutions, and other entities that are Southern
Baptist denominational organizations (such ministers and employees referred to
collectively hereafter as, "Participants"); (ii) other assets of Participants or
their spouses; (iii) assets of churches, associations, conventions, agencies,
institutions, and other entities that are Southern Baptist denominational
organizations; and (iv) assets of the Annuity Board of the Southern Baptist
Convention or its controlled corporations.
ARTICLE I
DEFINITIONS
Unless otherwise provided or required by the context:
(a) "Annuity Board" means the Annuity Board of the Southern Baptist
Convention, together with SBC Trust Services, Inc. and/or SBC Financial
Services, Inc., and/or any other corporation or entity controlled by the Annuity
Board of the Southern Baptist Convention;
(b) "By-laws" means the By-laws of the Trust adopted by the Trustees,
as amended from time to time;
(c) "Class" means the class of Shares of a Series established pursuant
to Article IV;
(d) "Commission," "Interested Person," and "Principal Underwriter" have
the meanings provided in the 1940 Act;
(e) "Covered Person" means a person so defined in Article IX, Section
2;
(f) "Delaware Act" means Chapter 38 of Title 12 of the Delaware Code
entitled "Treatment of Delaware Business Trusts," as amended from time to time;
(g) "Majority Shareholder Vote" means "the vote of a majority of the
outstanding voting securities" as defined in the 1940 Act;
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(h) "Net Asset Value" means the net asset value of each Series or Class
of the Trust, determined as provided in Article V, Section 3;
(i) "Outstanding Shares" means Shares shown on the books of the Trust
or its transfer agent as then issued and outstanding, but does not include
Shares which have been repurchased or redeemed by the Trust;
(j) "Series" means a series of Shares established pursuant to Article
IV;
(k) "Shareholder" means a record owner of Outstanding Shares. Shares
may be only issued to: (a) the Annuity Board for its own account or for plans
and trusts administered by the Annuity Board as to which the Annuity Board has
authority to vote all Shares; (b) registered investment companies or series
thereof established by the Annuity Board; (c) accounts administered by the
Annuity Board for assets of churches, associations, conventions, agencies,
institutions, and other entities that are Southern Baptist denominational
organizations; and (d) Participants or their spouses;
(l) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest of each Series or Class is divided
from time to time (including whole Shares and fractions of Shares);
(m) "Trust" means Annuity Board Funds Trust established hereby, and
reference to the Trust, when applicable to one or more Series, refers to that
Series;
(n) "Trustees" means the persons who have signed this Trust Instrument,
so long as they shall continue in office in accordance with the terms hereof,
and all other persons who may from time to time be duly qualified and serving as
Trustees in accordance with Article II, in all cases in their capacities as
Trustees hereunder;
(o) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the Trust or any Series
or the Trustees on behalf of the Trust or any Series;
(p) The "1940 Act" means the Investment Company Act of 1940, as amended
from time to time.
ARTICLE II
TRUSTEES
Section 1. Management of the Trust. The business and affairs of the
Trust shall be managed by or under the direction of the Trustees, and they shall
have all powers necessary or
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desirable to carry out that responsibility. The Trustees may execute all
instruments and take all action they deem necessary or desirable to promote the
interests of the Trust.
Section 2. Initial Trustees; Number and Election of Trustees. The
initial Trustees shall be the two persons initially signing this Trust
Instrument who shall be the Chairman and Vice Chairman of the board of trustees
of the Annuity Board of the Southern Baptist Convention and who shall serve
until the initial date of issuance of the Shares of the Trust, at which time the
initial Shareholder shall elect new Trustees. The number of Trustees (other than
the initial Trustees) shall be initially set at six. The Board of Trustees
(other than the initial Trustees) shall consist of four Trustees not deemed to
be Interested Persons of the Trust ("Disinterested Trustees") and two Trustees
("Interested Trustees") serving as members of the Annuity Board of the Southern
Baptist Convention board of trustees. At all times at least a majority of the
Trustees shall be Disinterested Trustees. All Trustees at all times must be
active members of a Baptist church in friendly cooperation with the Southern
Baptist Convention as defined in the Southern Baptist Convention Constitution.
The Shareholders shall elect subsequent Trustees as vacancies occur, in
accordance with and as described in Article II, Section 4.
Section 3. Term of Office. Each Disinterested Trustee shall hold office
until his or her resignation, removal or mandatory retirement as provided
herein. Each Interested Trustee shall hold office until his or her resignation,
removal or mandatory retirement as provided herein, or until he or she ceases to
be a member of the Annuity Board of the Southern Baptist Convention board of
trustees. Any Trustee may be removed at any meeting of the Shareholders by a
vote of a majority of the Outstanding Shares. Any Trustee may resign by
delivering to the other Trustees or to any Trust officer a written resignation
effective upon such delivery or a later date specified therein. All Trustees
must retire after reaching the age of seventy-seven years or after achieving ten
years of service, whichever occurs last.
Section 4. Vacancies. Whenever a vacancy shall exist in the Board of
Trustees, or a new Trustee is otherwise elected after the Trust commences
operations, a Shareholder may nominate a Trustee by following the applicable
procedures specified in the By-laws. Only the Shareholders, by a vote of a
majority of the Outstanding Shares, may fill vacancies in the Board of Trustees
or otherwise elect a Trustee. The selection and nomination of persons to fill
vacancies on the Board of Trustees as Disinterested Trustees shall be committed
to the discretion of the Disinterested Trustees then serving, provided that the
Shareholders may also nominate and select persons to serve in these positions as
specified herein.
Section 5. Chairman. The Trustees shall appoint one of their number to
be Chairman of the Board of Trustees. The Chairman shall preside at all meetings
of the Trustees and at all Shareholder meetings.
Section 6. Action by the Trustees. The Trustees shall act by majority
vote at a meeting duly called (including at a telephonic meeting, unless the
1940 Act requires that a particular action be taken only at a meeting of
Trustees in person) at which a quorum is present or by written consent of a
majority of Trustees (or such greater number as may be required by applicable
law) without a
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meeting. A majority of the Trustees shall constitute a quorum at any meeting.
Meetings of the Trustees may be called orally or in writing by the Chairman of
the Board of Trustees or by any two other Trustees. Notice of the time, date and
place of all Trustees meetings shall be given to each Trustee by telephone,
facsimile or other electronic mechanism sent to his or her home or business
address or by written notice mailed to his or her home or business address at
least ten days in advance of the meeting. Notice may be waived if action by the
Trustees is required prior to the expiration of such ten day period. Notice need
not be given to any Trustee who attends the meeting without objecting to the
lack of notice or who signs a waiver of notice either before or after the
meeting. Any written consent or waiver may be provided and delivered to the
Trust by facsimile or other similar electronic mechanism.
Section 7. Ownership of Trust Property. The Trust Property shall be
held separate and apart from any assets now or hereafter held in any capacity
other than as Trustee hereunder by the Trustees or any successor Trustees. All
of the Trust Property and legal title thereto shall at all times be considered
as vested in the Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by or in the name of the
Trust, or in the name of any person as nominee. No Shareholder shall be deemed
to have a severable ownership in any individual asset of the Trust or of any
Series or any right of partition or possession thereof, but each Shareholder
shall have, as provided in Article IV, a proportionate undivided beneficial
interest in the Trust or Series represented by Shares.
Section 8. Effect of Trustees Not Serving. The death, resignation,
retirement, removal, incapacity, or inability or refusal to serve of the
Trustees, or any one of them, shall not operate to annul the Trust or to revoke
any existing agency created pursuant to the terms of this Trust Instrument.
Section 9. Trustees, etc. as Shareholders. Subject to the restrictions
of Article IV, Section 3, any Trustee, officer, agent or independent contractor
of the Trust may acquire, own and dispose of Shares, or beneficial interests in
Shares, to the same extent as any other Shareholder; the Trustees may issue and
sell Shares to and buy Shares, or beneficial interests in Shares, from any such
person or any firm or company in which such person is interested, subject only
to any general limitations herein.
ARTICLE III
POWERS OF THE TRUSTEES
Section 1. Powers. The Trustees shall have full power and authority to
take or refrain from taking any action and to execute any contracts and
instruments that they may consider necessary or desirable in the management of
the Trust. The Trustees shall not in any way be bound or limited by current or
future laws or customs applicable to trust investments, but shall have full
power and authority to make any investments which they, in their sole
discretion, deem proper to accomplish the purposes of the Trust. The Trustees
may exercise all of their powers without recourse to any
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court or other authority. Subject to any applicable limitation herein or in the
By-laws, operating documents or resolutions of the Trust, the Trustees shall
have power and authority, without limitation.
(a) To invest and reinvest cash and other property, and to hold cash or
other property uninvested, without in any event being bound or limited by any
current or future law or custom concerning investments by trustees, and to sell,
exchange, lend, pledge, mortgage, hypothecate, write options on and lease any or
all of the Trust Property; to invest in obligations and securities of any kind,
and without regard to whether they may mature before the possible termination of
the Trust; and without limitation to invest all or any part of its cash and
other property in securities issued by a registered investment company or series
thereof, subject to the provisions of the 1940 Act and in accordance with
Article X, Section 2 of this Trust document;
(b) To operate as and carry on the business of a registered investment
company, and exercise all the powers necessary and proper to conduct such a
business;
(c) To adopt By-laws not inconsistent with this Trust Instrument
providing for the conduct of the business of the Trust;
(d) To appoint and terminate such officers and agents as they deem
appropriate;
(e) To employ as custodian of any assets of the Trust, subject to any
provisions herein or in the By-laws, one or more banks, trust companies or
companies that are members of a national securities exchange, or other entities
permitted by the Commission to serve as such;
(f) To retain one or more transfer agents and Shareholder servicing
agents, or both;
(g) To provide for the distribution of Shares either through a
Principal Underwriter as provided herein or by the Trust itself, or both, or
pursuant to a distribution plan of any kind;
(h) To set record dates in the manner provided for herein or in the
By-laws;
(i) To delegate such authority as they consider desirable to any
officers of the Trust and to any agent, independent contractor, manager,
investment adviser, custodian or underwriter;
(j) To sell or exchange any or all of the assets of the Trust, subject
to Article X;
(k) To vote or give assent, or exercise any rights of ownership, with
respect to other securities or property; and to execute and deliver powers of
attorney delegating such power to other persons, provided that the Trustees
shall vote the shares of any investment companies or series thereof established
by the Annuity Board only in accordance with the directions of Shareholders
holding a majority of the Outstanding Shares of the Trust or the applicable
Trust Series owning said investment company shares;
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(l) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(m) To hold any security or other property (i) in a form not indicating
any trust, whether in bearer, book entry, unregistered or other negotiable form,
or (ii) either in the Trust's or Trustees' own name or in the name of a
custodian or a nominee or nominees, subject to safeguards according to the usual
practice of business trusts or investment companies;
(n) 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 IV;
(o) 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 any 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 IV,
Section 4;
(p) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern whose securities are held
by the Trust; to consent to any contract, lease, mortgage, purchase, or sale of
property by such corporation or concern; and to pay calls or subscriptions with
respect to any security held in the Trust;
(q) 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;
(r) To make distributions of income and of capital gains to
Shareholders in the manner hereinafter provided for;
(s) To borrow money;
(t) To establish, from time to time, a minimum total investment for
Shareholders, and to require the redemption of the Shares of any Shareholders
whose investment is less than such minimum upon giving notice to such
Shareholder;
(u) To issue, sell, repurchase, redeem, cancel, retire, acquire, hold,
resell, reissue, dispose of and otherwise deal in Shares; to establish terms and
conditions regarding the issuance, sale, repurchase, redemption, cancellation,
retirement, acquisition, holding, resale, reissuance, disposition of or dealing
in Shares; and, subject to Articles IV and V, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property of the Trust or of the particular Series with respect to which such
Shares are issued; and
(v) To carry on any other business in connection with or incidental to
any of the
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foregoing powers, to do everything necessary or desirable to accomplish any
purpose or to further any of the foregoing powers, and to take every other
action incidental to the foregoing business or purposes, objects or powers.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers of
the Trustees. Any action by one or more of the Trustees in their capacity as
such hereunder shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity. No one dealing
with the Trustees shall be under any obligation to make any inquiry concerning
the authority of the Trustees, or to see to the application of any payments made
or property transferred to the Trustees or upon their order. In construing this
Trust Instrument, the presumption shall be in favor of a grant of power to the
Trustees.
Section 2. Certain Transactions. Except as prohibited by applicable
law, the Trustees may, on behalf of the Trust, employ the Annuity Board of the
Southern Baptist Convention or any controlled corporation thereof as broker,
legal counsel, registrar, investment adviser, administrator, distributor,
transfer agent, dividend disbursing agent, custodian or in any other capacity
upon customary terms notwithstanding the fact that any Trustee or officer of the
Trust serves as trustee, director, officer or employee of the Annuity Board of
the Southern Baptist Convention or any of its controlled corporations. Nothing
shall preclude the Trustees or officers of the Trust from holding a beneficial
interest in Shares through employee benefit plans administered by the Annuity
Board.
Section 3. Employment of Former Annuity Board Officers. The Trustees
shall not have authority to, and neither the Trust nor any service provider to
the Trust shall, employ for compensation either directly or indirectly, any
person who is or has been within the last seven (7) years an officer of the
Annuity Board of the Southern Baptist Convention; provided that, the Trust or
any service provider to the Trust may: (1) contract with the Annuity Board in
any capacity if no compensation is paid to any such current or former officer of
the Annuity Board of the Southern Baptist Convention by any entity other than
the Annuity Board itself; and (2) reimburse reasonable expenses incurred by any
officer or Trustee of the Trust or of such service provider.
ARTICLE IV
SERIES; CLASSES; SHARES
Section 1. Establishment of Series or Class. The Trust shall consist of
one or more Series which shall be established by the adoption of a resolution by
the Trustees. The Trustees may designate the relative rights and preferences of
the Shares of each Series. The Trustees may divide the Shares of any Series into
Classes. In such case each Class of a Series 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. The Trust
shall maintain separate and distinct records for each Series and hold and
account for the assets thereof separately from the other assets of the Trust or
of any other Series. A Series may issue any number of Shares and need not issue
Shares. Each Share
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of a Series shall represent an equal beneficial interest in the net assets of
such Series. Each holder of Shares of a Series shall be entitled to receive his
or her pro rata share of all distributions made with respect to such Series.
Upon redemption of his or her Shares, such Shareholder shall be paid solely out
of the funds and property of such Series.
Section 2. Shares. The beneficial interest in the Trust shall be
divided into Shares of one or more separate and distinct Series or Classes
established by the Trustees. The number of Shares of each Series and Class is
unlimited and each Share shall have a par value of $0.001 per Share. All Shares
issued hereunder shall be fully paid and nonassessable. Shareholders shall have
no preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust. The Trustees shall have full power and
authority, in their sole discretion and without obtaining Shareholder approval,
to issue original or additional Shares and fractional Shares.
Section 3. Investment in the Trust. The Trustees shall accept
investments in any Series only from: (a) the Annuity Board for its own account
or for plans and trusts administered by the Annuity Board as to which the
Annuity Board has authority to vote all Shares; (b) registered investment
companies or series thereof established by the Annuity Board; (c) accounts
administered by the Annuity Board for assets of churches, associations,
conventions, agencies, institutions, and other entities that are Southern
Baptist denominational organizations; and (d) Participants or their spouses. At
the Trustees' discretion, such investments, subject to applicable law, may be in
the form of cash or securities in which that Series is authorized to invest,
valued as provided in Article V, Section 3. Investments in a Series shall be
credited to each Shareholder's account in the form of full Shares at the Net
Asset Value per Share next determined after the investment is received or
accepted in proper form as may be determined by the Trustees; provided, however,
that the Trustees may, in their sole discretion, (a) impose a sales charge upon
investments in any Series or Class, (b) issue fractional Shares, or (c)
determine the Net Asset Value per Share of the initial capital contribution. The
Trustees shall have the right to refuse to accept investments in any Series at
any time without any cause or reason therefor whatsoever. The Trust shall refuse
to accept any investments in any Series, if, after such investment, the Annuity
Board of the Southern Baptist Convention would not hold with the authority to
vote, or indirectly control the vote of, at least 60% of any Series' shares.
Section 4. Assets and Liabilities of Series. All consideration received
by the Trust for the issue or sale of Shares of a particular Series, together
with all assets in which such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof (including any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may
be), shall be held and accounted for separately from the other assets of the
Trust and every other Series and are referred to as "assets belonging to" that
Series. The assets belonging to a Series shall belong only to that Series for
all purposes, and to no other Series, subject only to the rights of creditors of
that Series. Any assets, income, earnings, profits, and proceeds thereof, funds,
or payments which are not readily identifiable as belonging to any particular
Series shall be allocated by the Trustees between and among one or more Series
as the Trustees deem fair and equitable. Each such allocation shall be
conclusive and binding upon the Shareholders of all Series for all purposes, and
such assets,
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earnings, income, profits or funds, or payments and proceeds thereof shall be
referred to as assets belonging to that Series. The assets belonging to a Series
shall be so recorded upon the books of the Trust, and shall be held by the
Trustees in trust for the benefit of the Shareholders of that Series. The assets
belonging to a Series shall be charged with the liabilities of 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, expenses, costs, charges or
reserves of the Trust which are not readily identifiable as belonging to any
particular Series or Class shall be allocated and charged by the Trustees
between or among any one or more of the Series or Classes in such manner as the
Trustees deem fair and equitable. Each such allocation 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 of such Series only, and not against the
assets of the Trust generally or of 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.
Section 5. Ownership and Transfer of Shares. The Trust shall maintain a
register containing the names and addresses of the Shareholders of each Series
and Class thereof, the number of Shares of each Series and Class held by such
Shareholders, and a record of all Share transfers. The register shall be
conclusive as to the identity of Shareholders of record and the number of Shares
held by them from time to time. The Trustees shall not be required to, but may
authorize the issuance of certificates representing Shares and adopt rules
governing their use. The Trustees may make rules governing the transfer of
Shares, whether or not represented by certificates.
Section 6. Status of Shares; Limitation of Shareholder Liability.
Shares shall be deemed to be personal property giving Shareholders only the
rights provided in this Trust Instrument. Every Shareholder, by virtue of having
acquired a Share, shall be held expressly to have assented to and agreed to be
bound by the terms of this Trust Instrument and to have become a party hereto.
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 shall
have any power to bind any Shareholder personally or to demand payment from any
Shareholder for anything, other than as agreed by the Shareholder. Shareholders
shall have the
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same limitation of personal liability as is extended to shareholders of a
private corporation for profit incorporated in the State of Delaware. Every
written obligation of the Trust or any Series shall contain a statement to the
effect that such obligation may only be enforced against the assets of the Trust
or such Series; however, the omission of such statement shall not operate to
bind or create personal liability for any Shareholder or Trustee.
ARTICLE V
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions. The Trustees may declare and pay dividends
and other distributions, including dividends on Shares of a particular Series
and other distributions from the assets belonging to that Series. The amount and
payment of dividends or distributions and their form, whether they are in cash,
Shares or other Trust Property, shall be determined by the Trustees. Dividends
and other distributions may be paid pursuant to a standing resolution adopted
once or more often as the Trustees determine. All dividends and other
distributions on Shares of a particular Series shall be distributed pro rata to
the Shareholders of that Series in proportion to the number of Shares of that
Series they held on the record date established for such payment, except that
such dividends and distributions shall appropriately reflect expenses allocated
to a particular Class of such Series.
Section 2. Redemptions. Each Shareholder of a Series shall have the
right at such times as may be permitted by the Trustees to require the Series to
redeem all or any part of his or her Shares at a redemption price per Share
equal to the Net Asset Value per Share at such time as the Trustees shall have
prescribed by resolution. In the absence of such resolution, the redemption
price per Share shall be the Net Asset Value next determined after receipt by
the Series of a request for redemption in proper form less such charges as are
determined by the Trustees and described in the Trust's Registration Statement
for that Series under the Securities Act of 1933. The Trustees may specify
conditions, prices, and places of redemption, and may specify binding
requirements for the proper form or forms of requests for redemption. Payment of
the redemption price may be wholly or partly in securities or other assets at
the value of such securities or assets used in such determination of Net Asset
Value, or may be in cash. Upon redemption, Shares may be reissued from time to
time.
Section 3. Determination of Net Asset Value. The Trustees shall cause
the Net Asset Value of Shares of each Series or Class to be determined from time
to time in a manner consistent with applicable laws and regulations. The
Trustees may delegate the power and duty to determine Net Asset Value per Share
to one or more Trustees or officers of the Trust or to an investment adviser,
custodian, depository or other agent appointed for such purpose. The Net Asset
Value of Shares shall be determined separately for each Series or Class at such
times as may be prescribed by the Trustees or, in the absence of action by the
Trustees, as of the close of trading on the New York Stock Exchange on each day
for all or part of which such Exchange is open for unrestricted trading.
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Section 4. Disclosure Requirements for Shareholders. Shareholders shall
upon demand disclose to the Trustees in writing such information concerning
direct and indirect ownership of Shares as the Trustees deem necessary to comply
with the requirements of any taxing or other legal authority.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. The Shareholders shall have power to vote
with respect to (a) the election of Trustees as provided in Sections 2 and 4 of
Article II; (b) the removal of Trustees as provided in Article II, Section 3;
(c) any investment advisory or management contract as provided in Article VII,
Section 1; (d) any termination of the Trust as provided in Article XI, Section
4; (e) the amendment of this Trust Instrument; (f) the fundamental investment
policies of the Trust as provided in Article X; and (g) such additional matters
relating to the Trust as may be required or authorized by law, this Trust
Instrument, the By-laws, or any registration of the Trust with the Commission or
any State, or as the Trustees may consider desirable.
On any matter submitted to a vote of the Shareholders, all Shares shall
be voted by individual Series or Class, except (a) in the case of the election
or removal of Trustees, the amendment of this Trust Instrument, or when required
by the 1940 Act, Shares shall be voted in the aggregate and not by individual
Series or Class, and (b) when the Trustees have determined that the matter
affects the interests of more than one Series or Class, then the Shareholders of
all such Series or Classes shall be entitled to vote thereon. Each whole Share
shall be entitled to one vote as to any matter on which it is entitled to vote,
and each fractional Share shall be entitled to a proportionate fractional vote.
There shall be no cumulative voting in the election of Trustees. Shares may be
voted in person or in any manner provided for in the By-laws. Until Shares of a
Series are issued, as to that Series the Trustees may exercise all rights of
Shareholders and may take any action required or permitted to be taken by
Shareholders by law, this Trust Instrument or the By-laws.
Section 2. Meetings of Shareholders. The first Shareholders' meeting
shall be held to elect Trustees at such time and place as the initial Trustees
designate. Thereafter, special meetings of the Shareholders of any Series or
Class may be called by the Trustees and shall be called by the Trustees upon the
written request of Shareholders owning at least fifty percent of the Outstanding
Shares of such Series or Class entitled to vote. Special meetings of
Shareholders shall be held, notice of such meetings shall be delivered and
waiver of notice shall occur according to the provisions of the Trust's By-laws.
Any action that may be taken at a meeting of Shareholders may be taken without a
meeting according to the procedures set forth in the By-laws.
Section 3. Quorum; Required Vote. One-half of the Outstanding Shares of
each Series or Class, or one-half of the Outstanding Shares of the Trust,
entitled to vote in person shall be a quorum for the transaction of business at
a Shareholders' meeting with respect to such Series or
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Class, or with respect to the entire Trust, respectively. Any lesser number
shall be sufficient for adjournments. Any adjourned session of a Shareholders'
meeting may be held within a reasonable time without further notice. Except when
a larger vote is required by law, this Trust Instrument or the By-laws, a
majority of the Outstanding Shares voted in person shall decide any matters to
be voted upon with respect to the entire Trust; provided, that if this Trust
Instrument or applicable law permits or requires that Shares be voted on any
matter by individual Series or Classes, then a majority of the Outstanding
Shares of that Series or Class (or, if required or permitted by law, regulation,
Commission order, or no-action letter, a Majority Shareholder Vote of that
Series or Class) voted in person on the matter shall decide that matter insofar
as that Series or Class is concerned. In lieu of a vote, at a meeting or
otherwise, Shareholders may act as to the Trust or any Series or Class by the
written consent of a majority (or such greater amount as may be required by
applicable law) of the Outstanding Shares of the Trust or of such Series or
Class, as the case may be.
ARTICLE VII
CONTRACTS WITH SERVICE PROVIDERS
Section 1. Investment Adviser. Subject to a Majority Shareholder Vote,
the Trustees may enter into one or more investment advisory contracts on behalf
of the Trust or any Series, providing for investment advisory services,
statistical and research facilities and services, and other facilities and
services to be furnished to the Trust or Series on terms and conditions
acceptable to the Trustees. Any such contract may provide for the investment
adviser to effect purchases, sales or exchanges of portfolio securities or other
Trust Property on behalf of the Trustees or may authorize any officer or agent
of the Trust to effect such purchases, sales or exchanges pursuant to
recommendations of the investment adviser. The Trustees may authorize the
investment adviser to employ one or more sub-advisers or servicing agents.
Section 2. Principal Underwriter. The Trustees may enter into contracts
on behalf of the Trust or any Series or Class, providing for the distribution
and sale of Shares by the other party, either directly or as sales agent, on
terms and conditions acceptable to the Trustees. The Trustees may adopt a plan
or plans of distribution with respect to Shares of any Series or Class and enter
into any related agreements, whereby the Series or Class finances directly or
indirectly any activity that is primarily intended to result in sales of its
Shares, subject to the requirements of Section 12 of the 1940 Act, Rule 12b-1
thereunder, and other applicable rules and regulations.
Section 3. Transfer Agency, Shareholder Services, and Administration
Agreements. The Trustees, on behalf of the Trust or any Series or Class, may
enter into transfer agency agreements, Shareholder service agreements, and
administration and management agreements with any party or parties on terms and
conditions acceptable to the Trustees.
Section 4. Custodian. The Trustees shall at all times place and
maintain the securities and similar investments of the Trust and of each Series
with a custodian meeting the requirements of
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Section 17(f) of the 1940 Act and the rules thereunder. The Trustees, on behalf
of the Trust or any Series, may enter into an agreement with a custodian on
terms and conditions acceptable to the Trustees, providing for the custodian,
among other things, to (a) hold the securities owned by the Trust or any Series
and deliver the same upon written order or oral order confirmed in writing, (b)
to receive and receipt for any moneys due to the Trust or any Series and deposit
the same in its own banking department or elsewhere, (c) to disburse such funds
upon orders or vouchers, and (d) to employ one or more sub-custodians.
Section 5. Parties to Contracts with Service Providers. The Trustees
may enter into any contract referred to in this Article with any entity,
although one or more of the Trustees or officers of the Trust may be an officer,
director, trustee, partner, shareholder, or member of such entity, and no such
contract shall be invalidated or rendered void or voidable because of such
relationship. No person having such a relationship shall be disqualified from
voting on or executing a contract in his or her capacity as Trustee and/or
Shareholder, or be liable merely by reason of such relationship for any loss or
expense to the Trust with respect to such a contract or accountable for any
profit realized directly or indirectly therefrom; provided, that the contract
was reasonable and fair and not inconsistent with this Trust Instrument or the
By-laws.
Any contract referred to in Sections 1 and 2 of this Article shall be
consistent with and subject to the applicable requirements of Section 15 of the
1940 Act and the rules and orders thereunder with respect to its continuance in
effect, its termination, and the method of authorization and approval of such
contract or renewal. No amendment to a contract referred to in Section 1 of this
Article shall be effective unless assented to in a manner consistent with the
requirements of Section 15 of the 1940 Act, and the rules and orders thereunder.
ARTICLE VIII
EXPENSES OF THE TRUST AND SERIES
Subject to Article IV, Section 4, the Trust or a particular Series
shall pay from the Trust estate or the assets belonging to the particular Series
for their expenses and disbursements, including, but not limited to, interest
charges, taxes, brokerage fees and commissions; expenses of issue, repurchase
and redemption of Shares; certain insurance premiums; applicable fees, interest
charges and expenses of third parties, including the Trust's investment
advisers, managers, administrators, distributors, custodians, transfer agents
and fund accountants; fees of pricing, interest, dividend, credit and other
reporting services; costs of membership in trade associations;
telecommunications expenses; funds transmission expenses; auditing, legal and
compliance expenses; costs of forming the Trust and its Series and maintaining
its existence; costs of preparing and printing the prospectuses of the Trust and
each Series, statements of additional information and reports for Shareholders
and delivering them to Shareholders; expenses of meetings of Shareholders
(unless otherwise agreed to by another party); costs of maintaining books and
accounts; costs of reproduction, stationery and supplies; fees and expenses of
the Trustees; costs of other personnel performing services for the Trust or any
Series; costs of Trustee meetings; Commission registration
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fees and related expenses; state or foreign securities laws registration fees
and related expenses; and for such non-recurring items as may arise, including
litigation to which the Trust or a Series (or a Trustee or officer of the Trust
acting as such) is a party, and for all losses and liabilities by them incurred
in administering the Trust.
ARTICLE IX
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Limitation of Liability. All persons contracting with or
having any claim against the Trust or a particular Series shall look only to the
assets of the Trust or such Series for payment under such contract or claim; and
neither the Trustees nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable therefor. Every
written instrument or obligation on behalf of the Trust or any Series shall
contain a statement to the foregoing effect, but the absence of such statement
shall not operate to make any Trustee or officer of the Trust liable thereunder.
Provided they have exercised reasonable care and have acted under the reasonable
belief that their actions are in the best interest of the Trust, the Trustees
and officers of the Trust shall not be responsible or liable for any act or
omission or for neglect or wrongdoing of them or any officer, agent, employee,
investment adviser or independent contractor of the Trust, but nothing contained
in this Trust Instrument or in the Delaware Act shall protect any Trustee or
officer of the Trust against liability to the Trust or to Shareholders to which
he or she would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office.
Section 2. Indemnification. (a) Subject to the exceptions and
limitations contained in subsection (b) below:
(i) every person who is, or has been, a Trustee or an officer,
employee or agent of the Trust ("Covered Person") shall be
indemnified by the Trust or the appropriate Series to the
fullest extent permitted by law against liability and against
all expenses reasonably incurred or paid by him or her in
connection with any claim, action, suit or proceeding in which
he or she becomes involved as a party or otherwise by virtue
of his or her being or having been a Covered Person and
against amounts paid or incurred by him or her in the
settlement thereof;
(ii) as used herein, 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, and the words "liability" and "expenses"
shall include, without limitation, attorneys' fees, costs,
judgments, amounts paid in settlement, fines, penalties and
other liabilities.
(b) 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 or her office, or (B) not to
have acted in good faith in the reasonable belief that his or
her action was in the best interest of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Covered Person did not engage in
willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her
office; (A) by the court or other body approving the
settlement; (B) by the vote of at least a majority of those
Trustees who are neither Interested Persons of the Trust nor
are parties to the proceeding 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).
(c) 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, and shall inure to the benefit of the heirs, executors
and administrators of a Covered Person.
(d) To the maximum extent permitted by applicable law, expenses in
connection with the preparation and presentation of a defense to any claim,
action, suit or proceeding of the character described in subsection (a) of this
Section may be paid by the Trust or applicable Series from time to time prior to
final disposition thereof upon receipt of an undertaking by or on behalf of such
Covered Person that such amount will be paid over by him or her to the Trust or
applicable Series if it is ultimately determined that he or she is not entitled
to indemnification under this Section; 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 proceeding, or independent legal counsel
in a written opinion, shall have determined, based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that there is reason
to believe that such Covered Person will not be disqualified from
indemnification under this Section.
(e) Any repeal or modification of this Article IX by the Shareholders
of the Trust, or adoption or modification of any other provision of the Trust
Instrument or By-laws inconsistent with this Article, shall be prospective only,
to the extent that such repeal or modification would, if applied
retrospectively, adversely affect any limitation on the liability of any Covered
Person or indemnification available to any Covered Person with respect to any
act or omission which occurred prior to such repeal, modification or adoption.
Section 3. Indemnification of Shareholders. If any Shareholder or
former Shareholder of any Series shall be held personally liable solely by
reason of his or her being or having been a
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Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or in the case of any entity, its
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 such Shareholder, assume the defense of any claim
made against such Shareholder for any act or obligation of the Series and
satisfy any judgment thereon from the assets of the Series.
ARTICLE X
INVESTMENTS BY THE TRUST
Section 1. Investment Objectives, Policies and Restrictions. The Trust
and/or each Series shall adhere to the fundamental and nonfundamental investment
objectives, policies and restrictions applicable to the Trust and/or each Series
included in the Trust's current effective registration statement as filed with
the Commission ("Registration Statement"). If a percentage limitation is adhered
to at the time of an investment, a later increase or decrease in the percentage
resulting from a change in the value of the assets of a Series shall not be a
violation of such investment restrictions.
Section 2. Investment Limitations. Trust assets may not be invested in
any company that is publicly recognized (as determined by the Annuity Board of
the Southern Baptist Convention internal Investment Policy Committee and the
Trustee Investment Committee of the Annuity Board of the Southern Baptist
Convention) as being in the liquor, tobacco, gambling, pornography, or abortion
industries or any company whose products, services or activities are publicly
recognized as being incompatible with the moral and ethical posture of the
Annuity Board. The foregoing shall be a fundamental policy of the Trust.
Section 3. Amendment of Investment Objectives, Policies and
Restrictions. Any investment objectives, policies and restrictions of the Trust
or any Series which are designated as fundamental in the Registration Statement
may not be changed without the approval of the holders of a majority of the
Outstanding Shares. Any investment objectives, policies or restrictions deemed
nonfundamental may be changed by vote of the Board of Trustees.
ARTICLE XI
MISCELLANEOUS
Section 1. Trust Not a Partnership. This Trust Instrument creates a
statutory business trust and not a partnership. No Trustee shall have any power
to bind personally either the Trust's officers or any Shareholder.
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Section 2. Trustee Action; Expert Advice; No Bond or Surety. The
exercise by the Trustees of their powers and discretion hereunder in good faith
and with reasonable care under the circumstances then prevailing shall be
binding upon everyone interested. Subject to the provisions of Article IX, the
Trustees 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 Trust Instrument, and subject to the provisions of
Article IX, shall not be liable for any act or omission in accordance with such
advice or 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 obtained.
Section 3. Record Dates. The Trustees may fix in advance a date up to
sixty (60) days before the date of any Shareholders' meeting, or the date for
the payment of any dividends or other distributions, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect as a record date for the determination of the
Shareholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of such dividend or other distribution, or to
receive any such allotment of rights, or to exercise such rights in respect of
any such change, conversion or exchange of Shares. Record dates for adjourned
meetings of Shareholders shall be set according to the Trust's By-laws.
Section 4. Termination of the Trust. (a) This Trust shall have
perpetual existence. Subject to approval of the holders of a majority of the
Outstanding Shares of the Trust or of each Series to be affected, the Trustees
may at any time sell and convert into money all or substantially all of the
assets of the Trust or any affected Series.
Upon making reasonable provision for the payment of all known liabilities of the
Trust or any affected Series the Trustees shall distribute the remaining
proceeds or assets (as the case may be) ratably among the Shareholders of the
Trust or any affected Series; however, the payment to any particular Class of
such Series may be reduced by any fees, expenses or charges allocated to that
Class.
(b) Upon completion of the distribution of the remaining proceeds or
assets pursuant to subsection (a), the Trust or affected Series shall terminate
and the Trustees and the Trust shall be discharged of any and all further
liabilities and duties hereunder with respect thereto and the right, title and
interest of all parties therein shall be canceled and discharged. 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 5. Trust Instrument. The original or a copy of this Trust
Instrument and of each amendment hereto or Trust Instrument supplemental 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 a
Trustee or an officer of the Trust as to the authenticity of the Trust
Instrument or any such amendments or supplements and as to any matters in
connection with the Trust. The masculine gender herein shall include the
feminine and neuter genders. Headings herein are for
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<PAGE> 21
convenience only and shall not affect the construction of this Trust Instrument.
This Trust Instrument may be executed in any number of counterparts, each of
which shall be deemed an original.
Section 6. Applicable Law. This Trust Instrument and the Trust created
hereunder are governed by and construed and administered according to the
Delaware Act and the applicable laws of the State of Delaware; provided,
however, that there shall not be applicable to the Trust, the Trustees or this
Trust Instrument (a) the provisions of Section 3540 of Title 12 of the Delaware
Code, or (b) any provisions of the laws (statutory or common) of the State of
Delaware (other than the Delaware Act) pertaining to trusts which relate to or
regulate (i) the filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges, (ii) affirmative requirements
to post bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of a trust, (v)
the allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards of responsibilities or limitations on the acts or powers of
trustees, which are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this Trust
Instrument. The Trust shall be of the type commonly called a Delaware business
trust, and, without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust under Delaware law. The
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by 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.
Section 7. Amendments. Only Shareholders, by vote of a majority of the
Outstanding Shares, may amend or otherwise supplement this Trust Instrument by
making an amendment, a Trust Instrument supplemental hereto or an amended and
restated trust instrument.
Section 8. Fiscal Year. The fiscal year of the Trust shall end on a
specified date as set forth in the By-laws. The Trustees may change the fiscal
year of the Trust without Shareholder approval.
Section 9. Severability. The provisions of this Trust Instrument are
severable. If the Trustees determine, with the advice of counsel, that any
provision hereof conflicts with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of this Trust Instrument; provided, however, that such determination
shall not affect any of the remaining provisions of this Trust Instrument or
render invalid or improper any action taken or omitted prior to such
determination. If any provision hereof shall be held invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall attach only to such
provision only in such jurisdiction and shall not affect any other provision of
this Trust Instrument.
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Section 10. Consent to Jurisdiction. Each of the Trustees, and, by
acquiring and holding Shares of any Class or Series of the Trust, each
Shareholder, hereby agrees to (i) the non-exclusive jurisdiction of the courts
of the State of Delaware and any Federal court sitting in Wilmington, Delaware,
and (ii) service of process by mail at the last known address of such Trustee or
Shareholder as set forth in the records of the Trust.
Section 11. Counterparts. This Trust Instrument may be signed in
counterparts.
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<PAGE> 23
IN WITNESS WHEREOF, the undersigned, being the initial
Trustees, have executed this Trust Instrument as of the date first above
written.
/s/ George J. Tous van Nijkerk
-------------------------------
George J. Tous van Nijkerk
/s/ Alton L. Fannin
-------------------------------
Alton L. Fannin
