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Exhibit 23 (a)
DECLARATION OF TRUST
OF
MARKET STREET FUND
A DELAWARE BUSINESS TRUST
Principal Place of Business:
103 Bellevue Parkway
Wilmington, Delaware 19809
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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
(a) The Trust 1
(b) Trust Property 1
(c) Trustees 1
(d) Shares 1
(e) Shareholder 2
(f) Person 2
(f) 1940 Act 2
(g) Commission and Principal Underwriter 2
(h) Declaration of Trust 2
(i) Bylaws 2
(j) Interested Person 2
(k) Investment Adviser or Adviser 2
(l) Series 2
ARTICLE II. PURPOSE OF TRUST 2
ARTICLE III. SHARES 3
Section 1. Shares of Beneficial Interests 3
Section 2. Ownership of Shares 3
Section 3. Investments in the Trust 3
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Section 4. Status of Shares and Limitation of Personal Liability 4
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares 4
Section 6. Establishment and Designation of Shares 4
(a) Assets Held with Respect to a Particular Series 4
(b) Liabilities Held with Respect to a Particular Series 5
(c) Dividends, Distributions, Redemptions, and Repurchases 6
(d) Voting 6
(e) Equality 6
(f) Fractions 6
(g) Exchange Privilege 6
(h) Combination of Series 7
(i) Elimination of Series 7
ARTICLE IV. THE BOARD OF TRUSTEES 7
Section 1. Number, Election, and Tenure 7
Section 2. Effect of Death, Resignation, Removal, or
Incapacitation of a Trustee 7
Section 3. Powers 8
Section 4. Payment of Expenses by the Trust 12
Section 5. Ownership of Assets of the Trust 12
Section 6. Service Contracts 12
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS 13
Section 1. Voting Powers 13
Section 2. Voting Power and Meetings 14
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Section 3. Quorum and Required Vote 14
Section 4. Action by Written Consent 14
Section 5. Record Dates 14
ARTICLE VI. NET ASSET VALUE, DISTRIBUTIONS, AND REDEMPTIONS 15
Section 1. Determination of Net Asset Value, Net Income, and Distributions 15
Section 2. Redemptions and Repurchases 15
Section 3. Transfer of Shares 15
ARTICLE VII. COMPENSATION AND LIMITATION OF LIABILITY 15
Section 1. Compensation of Trustees 15
Section 2. Indemnification and Limitation of Liability 16
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or Surety 16
Section 4. Insurance 16
ARTICLE VIII. MISCELLANEOUS 16
Section 1. Delaware Office 16
Section 2. Liability of Third Persons Dealing with Trustees 17
Section 3. Termination of Trust or Series 17
Section 4. Merger and Consolidation 17
Section 5. Amendments 17
Section 6. Filing of Copies, References, Headings 17
Section 7. Applicable Law 18
Section 8. Provisions in Conflict with Law, Regulations, or Bylaws 18
Section 9. Business Trust Only 19
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DECLARATION OF TRUST
OF
MARKET STREET FUND
WHEREAS, this DECLARATION OF TRUST is made and entered into as of the
31st of October, 2000, 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 a Certificate of Trust
be filed with the Office of the Secretary of State of the State of Delaware, do
hereby direct that notice of the limitation on liabilities of a Series as
referenced in the Delaware Business Trust Act ("DBTA"), and that further notice
that the Trust is or shall become a registered investment company under the
Investment Company Act of 1940, as amended, shall be set forth in the
Certificate of Trust and do hereby declare that the Trustees shall 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 in this Trust as hereinafter set forth.
ARTICLE I.
NAME AND DEFINITIONS
SECTION 1. NAME. This Trust shall be known as "Market Street Fund" and
the Trustees shall conduct the business of the Trust under that name or any
other name as the Trustees may from time to time determine.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust
established by this Declaration of Trust, as amended
from time to time;
(b) The "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held
by or for the account of the Trust;
(c) "Trustees" refers to the persons who have signed this
Declaration of Trust, so long as they continue in office
in accordance with the terms hereof, and all other
persons who may from time to time be duly elected or
appointed to serve on the Board of Trustees in
accordance with the provisions hereof, and reference
herein to a Trustee or the Trustees shall refer to such
person or persons in their capacity as trustees
hereunder;
(d) "Shares" means the shares of beneficial interest into
which the beneficial interest in the Trust shall be
divided from time to
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time as described in Article III and includes fractional
and whole Shares;
(e) "Shareholder" means a record owner of outstanding
Shares;
(f) "Person" means and includes individuals, corporations,
partnerships, trusts, foundations, plans, associations,
joint ventures, estates and other entities, whether or
not legal entities, and governments and agencies and
political subdivisions thereof, whether domestic or
foreign;
(g) The "1940 Act" refers to the Investment Company Act of
1940 and the Rules and Regulations thereunder, all as
amended from time to time. References herein to specific
sections of the 1940 Act shall be deemed to include such
Rules and Regulations as are applicable to such sections
as determined by the Board of Trustees or their
designees;
(h) The terms "Commission" and "Principal Underwriter" shall
have the respective meanings given them in Section
2(a)(7) and Section (2)(a)(29) of the 1940 Act;
(i) "Declaration of Trust" shall mean this Declaration of
Trust, as amended or restated from time to time;
(j) "Bylaws" shall mean the Bylaws of the Trust, as amended
from time to time;
(k) The term "Interested Person" has the meaning given it in
Section 2(a)(19) of the 1940 Act;
(l) "Investment Adviser" or "Adviser" means a party
furnishing services to the Trust pursuant to any
contract described in Article IV, Section 6(a) hereof;
(m) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of
Article III.
ARTICLE II.
PURPOSE OF TRUST
The Trust is a Delaware business trust as referred to in the DBTA,
Chapter 38 of Title 12 of the Delaware Code (and any successor statute) and the
rules and regulations thereunder, all as amended from time to time, and the
purpose of the Trust is to conduct, operate, and carry on the business of an
open-end management investment company through one or more Series and to do
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any and all acts or things as are necessary, convenient, appropriate,
incidental, or customary in connection with its business.
ARTICLE III.
SHARES
SECTION 1. SHARES OF BENEFICIAL INTERESTS. The Trust's beneficial
interests shall at all times be divided into an unlimited number of Shares,
without par value. The Board of Trustees may authorize the division of Shares
into separate Series and the division of Series into separate classes of Shares.
The Board of Trustees shall establish and designate different Series, and fix
and determine the variations in the relative rights and preferences as between
the different Series. If only one Series shall be established, the Shares shall
have the rights and preferences provided for herein and in Article III, Section
6 hereof to the extent relevant and not otherwise provided for herein. Subject
to the provisions of Section 6 of this Article III, each Share shall have voting
rights as provided in Article V hereof, and Shareholders of any Series shall be
entitled to receive dividends, when, if and as declared with respect thereto in
the manner provided in Article VI, Section 1 hereof. No Share shall have any
priority or preference over any other Share of the same Series with respect to
dividends or distributions of the Trust or otherwise. All dividends and
distributions shall be made ratably among all Shareholders of a Series (or
class) from the assets held with respect to such Series according to the number
of Shares of such Series (or class) held of record by such Shareholders on the
record date for any dividend or distribution, on the date of termination of the
Series, or on the date of termination of the Trust, as the case may be.
Shareholders shall have no preemptive or other right to subscribe to any
additional Shares or other securities issued by the Trust or any Series. The
Trustees may from time to time, without Shareholder vote, divide or combine the
Shares of a Series into a greater or lesser number of Shares of such Series
without thereby materially changing the proportionate beneficial interests of
such Shares in the assets held with respect to that Series or materially
affecting the rights of Shares of any other Series.
SECTION 2. OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust or of a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each Series
(or class). No certificates evidencing the ownership of Shares shall be issued
except as the Board of Trustees may otherwise determine from time to time. The
Board of Trustees may make such rules as they consider appropriate for the
transfer of Shares of each Series (or class) 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 and as to the number of Shares of each Series (or class) held from time
to time by each Shareholder.
SECTION 3. INVESTMENTS IN THE TRUST. Investments may be accepted by the
Trust from such Persons, at such times, in such form and on such terms, and for
such consideration as the Trustees from time to time may authorize. Each
investment shall be credited to the Shareholder's account in the form of full
and fractional Shares of the Trust, in such Series (or class) as the purchaser
shall select, at the net asset value per Share next determined for such Series
(or class) after receipt of the investment; provided, however, that the Trustees
may, in their sole discretion, impose a sales charge or reimbursement fee upon
investments in the Trust.
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SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument and the Bylaws of the Trust. Every Shareholder by virtue of having
become a Shareholder shall be held to have expressly assented and agreed to the
terms hereof. Ownership of Shares shall not entitle a Shareholder to any title
in or to the whole or any part of the Trust Property or right to call for a
partition or division of the same or for an accounting, nor shall the ownership
of Shares constitute the Shareholders as partners or joint venturers. Neither
the Trust nor the Trustees, nor any officer, employee or agent of the Trust
shall have any power to bind personally any Shareholder, or to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever other
than such as the Shareholder may at any time agree to pay. Moreover, every
Shareholder shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
Delaware general corporate law.
SECTION 5. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS RELATING TO
SHARES. Notwithstanding any other provision of this Declaration of Trust to the
contrary, and without limiting the power of the Board of Trustees to amend the
Declaration of Trust as provided elsewhere herein, the Board of Trustees shall
have the power to amend this Declaration of Trust, at any time and from time to
time, in such manner as the Board of Trustees may determine in its sole
discretion, without the need for Shareholder action, so as to add to, delete,
replace or otherwise modify any provisions relating to the Shares contained in
this Declaration of Trust; provided, that Shareholder approval is not expressly
required by the 1940 Act or the DBTA. If Shares have been issued, Shareholder
approval shall be required to adopt any amendments to this Declaration of Trust
that would adversely affect, to a material degree, the rights and preferences of
the Shares of any Series (or class); provided, that the Board of Trustees may
determine to dissolve a Series (or class) of the Trust or the Trust itself
without a Shareholder vote, unless Shareholder approval is expressly required by
the 1940 Act or the DBTA.
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SHARES. The establishment
and designation of any Series (or class) of Shares shall be effective upon the
adoption by the Board of Trustees, of a resolution which sets forth such
establishment and designation and the relative rights and preferences of such
Series (or class). Each such resolution shall be incorporated herein by
reference upon adoption. Shares of each Series (or class) established pursuant
to this Section 6, 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 Series, including dividends and distributions paid
by, and reinvested in, such Series, 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
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the same may be, shall irrevocably be held with respect to that
Series for all purposes, subject only to the rights of
creditors, 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, together with any General Assets as defined below,
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 that
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 Asset 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 in absence of manifest error.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR SERIES. The assets
of the Trust held with respect to each Series shall be charged
with the liabilities of the Trust with respect to such Series
and all expenses, costs, charges and reserves attributable to
such Series, and any general liabilities, expenses, costs,
charges or reserves of the Trust that are not readily
identifiable as being held in respect of a Series shall be
allocated and charged by the Trustees to and among any one or
more Series in such manner and on such basis as the Trustees in
their sole discretion deem fair and equitable. The liabilities,
expenses, costs, charges, and reserves so allocated and charged
to a Series are herein referred to as "liabilities held with
respect to" that Series. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the holders of all Series for all
purposes in absence of manifest error. All Persons who have
extended credit that has been allocated to a particular Series,
or who have a claim or contract that has been allocated to a
Series, shall look exclusively to the assets held with respect
to such Series for payment of such credit, claim, or contract.
In the absence of an express agreement so limiting the claims of
such creditors, claimants and contracting parties, each
creditor, claimant and contracting party shall be deemed
nevertheless to have agreed to such limitation unless an express
provision to the contrary has been incorporated in the written
contract or other document establishing the contractual
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relationship; provided, that the Trustees shall not obligate the
assets of one Series to pay claims incurred solely by another
Series of the Trust.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND REPURCHASES. No
dividend or distribution including, without limitation, any
distribution paid upon termination of the Trust or of any Series
(or class) with respect to, or 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 (or class), nor shall any Shareholder of any Series
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
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 in absence of
manifest error.
(d) VOTING. All Shares of the Trust entitled to vote on a matter
shall vote without differentiation between the separate Series
on a one-vote-per-each dollar (and a fractional vote for each
fractional dollar) of the net asset value of each share
(including fractional shares) basis; provided however, if a
matter to be voted on affects only the interests of not all
Series (or class of a Series), then only the Shareholders of
such affected Series (or class) shall be entitled to vote on the
matter.
(e) EQUALITY. All the Shares of each Series shall represent an equal
proportionate undivided interest in the assets held with respect
to such Series (subject to the liabilities of such Series and
such rights and preferences as may have been established and
designated with respect to classes of Shares within such
Series), and each Share of a Series shall be equal to each other
Share of such Series (subject to the rights and preferences of
any such classes).
(f) FRACTIONS. Any fractional Share of a Series shall have
proportionately all the rights and obligations of a whole share
of such Series, including rights with respect to voting, receipt
of dividends and distributions and redemption of Shares.
(g) EXCHANGE PRIVILEGE. The Trustees shall have the authority to
provide that the holders of Shares of any Series shall have the
right to exchange such Shares for Shares of one or more other
Series in accordance with such requirements and procedures as
may be established by the Trustees.
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(h) COMBINATION OF SERIES. The Trustees shall have the authority,
without the approval of the Shareholders of any Series unless
otherwise required by the DBTA, to combine the assets and
liabilities held with respect to any two or more Series (or
class) into assets and liabilities held with respect to a single
Series (or class).
(i) ELIMINATION OF SERIES. At any time, the Trustees may
abolish/dissolve any Series (or class) of the Trust, without a
Shareholder vote.
ARTICLE IV.
THE BOARD OF TRUSTEES
SECTION 1. NUMBER, ELECTION, AND TENURE. The number of Trustees
constituting the Board of Trustees shall be fixed from time to time by a written
instrument signed, or by resolution approved at a duly constituted meeting, of
the Board of Trustees, provided, however, that the number of Trustees shall in
no event be less than three (3) nor more than twenty-one (21). Subject to the
requirements of the 1940 Act, the Board of Trustees, by action at a duly
constituted meeting, may fill vacancies in the Board of Trustees and remove
Trustees with or without cause. Each Trustee of the Trust as of November 15,
2000 shall serve during the continued lifetime of the Trust until he or she
dies, resigns, is declared bankrupt or incompetent by a court of competent
jurisdiction, or is removed. Each Trustee duly elected subsequent to November
15, 2000 shall serve during the continued lifetime of the Trust in accordance
with the retirement policies established by the Board of Trustees, or until he
or she dies, resigns, is declared bankrupt or incompetent by a court of
competent jurisdiction, or is removed. 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
or other payment on account of such removal. Any Trustee may be removed at any
meeting of Shareholders by a vote of two-thirds of the total combined net asset
value of all Shares of the Trust issued and outstanding. A meeting of
Shareholders for the purpose of electing or removing one or more Trustees may be
called (i) by the Trustees upon their own vote, or (ii) upon the demand of
Shareholders owning twenty-five percent (25%) or more of the total combined net
asset value of the Shares of the Trust in the aggregate.
SECTION 2. EFFECT OF DEATH, RESIGNATION, REMOVAL, OR INCAPACITATION OF A
TRUSTEE. The death, declination, 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 a vacancy in the Board of Trustees shall occur, until such
vacancy is filled as provided in Article IV, Section 1, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by this Declaration
of Trust.
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SECTION 3. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Trustees, and
such Board of Trustees shall have all powers necessary or convenient to carry
out that responsibility including the power to engage in transactions of all
kinds on behalf of the Trust. Trustees, in all instances, shall act as
principals and are and shall be free from the control of the Shareholders. The
Board of Trustees shall have full power and authority to do any and all acts and
to make and execute, or cause to be made and executed, any and all contracts,
documents and instruments that the Board may consider desirable, necessary or
appropriate in connection with the administration of the Trust. Without limiting
the foregoing, the Board of Trustees may:
(a) adopt, amend, and repeal Bylaws not inconsistent with this
Declaration of Trust, the 1940 Act and the DBTA providing for
the regulation and management of the affairs of the Trust;
(b) elect and remove such officers and appoint and terminate such
agents as they consider appropriate;
(c) appoint from their own number and establish and terminate one or
more committees, including but not limited to audit and
nominating committees, consisting of two or more Trustees who
may exercise the powers and authority of the Board of Trustees
to the extent that the Board of Trustees shall determine;
(d) employ one or more custodians of the assets of the Trust and may
authorize such custodians to employ sub-custodians 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, retain a transfer agent or a shareholder servicing agent,
or both;
(e) provide for the issuance and distribution of Shares by the Trust
directly or through one or more Principal Underwriters or
otherwise;
(f) redeem, repurchase and transfer Shares pursuant to applicable
law;
(g) set record dates for the determination of Shareholders with
respect to various matters;
(h) declare and pay dividends and distributions to Shareholders of
each Series from the assets of such Series;
(i) establish from time to time, in accordance with the provisions
of Article III, Section 6 hereof, any Series of Shares, each
such Series to operate as a separate and distinct investment
medium and with
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separately defined investment objectives and policies and
distinct investment purpose;
(j) incorporate the Trust, cause each Series to become a separate
trust, change the domicile of the Trust, or take any other
action not prohibited by the DBTA without obtaining Shareholder
approval; and
(k) in general delegate such authority as the Board considers
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,
Investment Adviser, or Principal Underwriter.
Any determination as to what is in the best interests of the Trust made
by the Board of 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 Board of Trustees and unless otherwise specified herein or
required by the 1940 Act or the DBTA, any action by the Board of Trustees shall
be deemed effective if approved or taken by a majority of the Trustees present
at any meeting at which a quorum is present. Any action required or permitted to
be taken at any meeting of the Board of Trustees, or any duly constituted
committee thereof, may be taken without a meeting if a majority of the members
of the Board of Trustees or committee (as the case may be) consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of the Board of Trustees, or committee, except as otherwise provided
in the 1940 Act.
Without limiting the foregoing, the Trust shall have power and
authority:
(a) To invest and reinvest cash and cash items, 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 all types of securities, futures
contracts and options thereon, and forward currency contracts of
every nature and kind, including, without limitation, all types
of bonds, debentures, stocks, preferred stocks, negotiable or
non-negotiable instruments, obligations, evidences of
indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances,
and other securities or instruments 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, any foreign government or any political subdivision of
the U.S. Government or any foreign government, or any
international instrumentality or organization,
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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, futures
contracts and options thereon, and forward currency contracts,
to 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, 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 with 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 securities, instruments 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, instruments or property as the Trustees shall deem
proper;
(d) To exercise powers and right of subscription or otherwise that
in any manner arise out of ownership of securities;
(e) To hold any security, instrument or property in a form not
indicating that it is Trust Property, 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 or to authorize the custodian or a subcustodian or
a nominee or nominees to deposit the same in a securities
depository, subject in each case to the applicable provisions of
the 1940 Act;
(f) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation,
trust or issuer of any security that is held in the Trust; to
consent to any contract, lease, mortgage, purchase or sale of
property by such corporation, trust 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, depository, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any
security to, any such
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committee, depository 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, depository or
trustee as the Trustees shall deem proper;
(h) To litigate, compromise, arbitrate, settle or otherwise adjust
claims in favor of or against the Trust or a Series, 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 or
Series exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person;
(l) To make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof;
(m) To purchase and pay for, entirely out of Trust Property, such
insurance as the Trustees may deem necessary, desirable 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 policies insuring the Shareholders,
Trustees, officers, employees, agents, Investment Adviser,
Principal Underwriters, or independent contractors of the Trust,
individually against all claims and liabilities of every nature
arising by reason of holding Shares, 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; and
(n) To adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, 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
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Trustees, officers, employees and agents of the Trust. 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.
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST. Subject to the provisions
of Article III, Section 6(b), the Board of Trustees is authorized to pay or
cause to be paid out of the principal or income of the Trust or Series, or
partly out of the principal and partly out of income, and to charge or allocate
the same to, between or among such one or more of the Series that may be
established or designated pursuant to Article III, Section 6, all expenses,
fees, charges, taxes and liabilities incurred or arising in connection with the
Trust or Series, 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, 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.
SECTION 5. 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. Upon the resignation, incompetency, bankruptcy, removal,
or death of a Trustee, he or she shall automatically cease to have any such
title in any of the Trust Property, and any title of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall not require conveyancing documents to have been
executed and delivered. The Trustees may determine that the Trust or the
Trustees, acting for and on behalf of the Trust, shall be deemed to hold
beneficial ownership of any income earned on the securities owned by the Trust,
whether domestic or foreign.
SECTION 6. SERVICE CONTRACTS.
(a) The Board of 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 for any Series
with any Person; and any such contract may contain such other
terms as the Board of Trustees may determine, including without
limitation, authority for the Investment Adviser to determine
from time to time without prior consultation with the Board of
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, and such other responsibilities as may specifically
be delegated to such Person.
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(b) The Board of Trustees may also, at any time and from time to
time, contract with any Persons, appointing such Persons
exclusive or nonexclusive distributor or Principal Underwriter
for the Shares of one or more of the Series or other securities
to be issued by the Trust. Every such contract may contain such
other terms as the Board of Trustees may determine.
(c) The Board of Trustees is also empowered, at any time and from
time to time, to contract with any Persons, appointing such
Person(s) to serve as custodian(s), transfer agent and/or
shareholder servicing agent for the Trust or one or more of its
Series. Every such contract shall comply with such terms as may
be required by the Board of Trustees.
(d) The Board of Trustees is further empowered, at any time and from
time to time, to contract with any Persons to provide such other
services to the Trust or one or more of the Series, as the Board
of Trustees determines to be in the best interests of the Trust
and the applicable Series or class.
(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
Person with which an advisory, management or administration
contract, or Principal Underwriter's or distributor's contract,
or transfer, shareholder servicing or other type of service
contract may be made, or that (ii) any Person with which an
advisory, management or administration contract or Principal
Underwriter's or distributor's contract, or transfer,
shareholder servicing or other type of service contract may be
made also has an advisory, management or administration
contract, or principal underwriter's or distributor's contract,
or transfer, shareholder servicing or other service contract, or
has other business or interests with any other Person, 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 applicable requirements of the
1940 Act.
ARTICLE V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 1. VOTING POWERS. Subject to the provisions of Article III,
Sections 5 and 6(d) hereof, the Shareholders shall have right to vote only (i)
for the election or removal of Trustees as provided in Article IV, Section 1,
and (ii) with respect to such additional matters relating to the Trust as may be
required by the applicable provisions of the 1940 Act, and (iii) on such other
matters as the Board of Trustees may consider necessary or desirable. Each
Shareholder shall
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have one vote for each dollar (and a fractional vote for each fractional dollar)
of the net asset value of each share (including fractional shares) held by such
Shareholder on the record date on each matter submitted to a vote at a meeting
of Shareholders. For purposes of this section, net asset value shall be
determined by the Board of Trustees pursuant to Section 22 of the 1940 Act and
the rules thereunder as of the record date for such meeting set pursuant to
Section 2.5 of the Trust's Bylaws. There shall be no cumulative voting in the
election of Trustees. Votes may be made in person or by proxy. A proxy
purporting to be executed by or on behalf of a Shareholder shall be deemed valid
unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger.
SECTION 2. VOTING POWER AND MEETINGS. Meetings of the Shareholders may
be called by the Board of Trustees for the purposes described in Section 1 of
this Article V. A meeting of Shareholders may be held at any place designated by
the Board of Trustees. Written notice of any meeting of Shareholders shall be
given or caused to be given by the Board of Trustees by delivering personally or
mailing such notice as provided in the Bylaws, before such meeting, postage
prepaid, stating the time and place of the meeting, to each Shareholder at the
Shareholder's address as it appears on the records of the Trust. Whenever notice
of a meeting is required to be given to a Shareholder under this Declaration of
Trust, a written waiver as provided in the Bylaws, or actual attendance at the
meeting of Shareholders in person or by proxy, shall be deemed equivalent to
such notice.
SECTION 3. QUORUM AND REQUIRED VOTE. Except as otherwise provided by the
1940 Act or in this Declaration of Trust, at any meeting of Shareholders, the
presence in person or by proxy of the holders of record of Shares issued and
outstanding and entitled to vote representing more than forty percent (40%) of
the total combined net asset value of all Shares issued and outstanding and
entitled to vote shall constitute a quorum for the transaction of any business
at the meeting. Any meeting of Shareholders may be adjourned from time to time
by a majority of the votes properly cast upon the question of adjourning a
meeting to another date and time, whether or not a quorum is present, and the
meeting may be held as adjourned within a reasonable time after the date set for
the original meeting without further notice. Subject to the provisions of
Article III, Section 6(d), and Article IV, Section 1, hereof, and the applicable
provisions of the 1940 Act, when a quorum is present at any meeting, a majority
vote of the Shares represented thereat shall decide any questions, except that
only a plurality vote shall be necessary to elect Trustees.
SECTION 4. ACTION BY WRITTEN CONSENT. Any action taken by Shareholders
may be taken without a meeting if all the Shareholders entitled to vote on the
matter are provided with not less than seven (7) days written notice thereof and
written consent to the action is filed with the records of the meetings of
Shareholders by the holders of the number of votes that would be required to
approve the matter as provided in Article V, Section 3. Such consent shall be
treated for all purposes as a vote taken at a meeting of Shareholders.
SECTION 5. RECORD DATES. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, the
Board of Trustees may fix a time, as provided in the Bylaws, as the record date
for determining the Shareholders having the right to notice of and to vote at
such meeting and any adjournment thereof, and in such case only
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Shareholders of record on such record date shall have such right,
notwithstanding any transfer of shares on the books of the Trust after the
record date. For the purpose of determining the Shareholders who are entitled to
receive payment of any dividend or of any other distribution, the Board of
Trustees may fix a date, which shall be before the date for the payment of such
dividend or distribution, as the record date for determining the Shareholders
having the right to receive such dividend or distribution. Nothing in this
Section shall be construed as precluding the Board of Trustees from setting
different record dates for different Series.
ARTICLE VI.
NET ASSET VALUE, DISTRIBUTIONS, AND REDEMPTIONS
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. Subject to Article III, Section 6 hereof, the Board of Trustees,
in its absolute discretion, may prescribe and shall set forth in a duly adopted
resolution such bases and time for determining the per Share net asset value of
the Shares of any Series or class and the declaration and payment of net income,
dividends and distributions on the Shares of any Series or class, as they may
deem necessary or desirable.
SECTION 2. REDEMPTIONS AND REPURCHASES. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption upon receipt by the
Trust or a Person designated by the Trust of a written request that the Trust
redeem such Shares, or in accordance with such procedures for redemption as the
Trustees may from time to time authorize; and the Trust will pay therefor the
net asset value thereof, in accordance with the applicable provisions of the
1940 Act. Payment for said Shares shall be made by the Trust to the Shareholder
subject to the provisions in the 1940 Act, the rules and regulations thereunder,
or otherwise as permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the Trustees. The
redemption price may in any case or cases be paid in cash or wholly or partly in
kind in accordance with the requirements of the 1940 Act. Subject to the
foregoing, the selection and quantity of securities or other property so paid or
delivered as all or part of the redemption price shall be determined by or under
authority of the Board of Trustees. In no case shall the Trust be liable for any
delay of any corporation or other Person in transferring securities selected for
delivery as all or part of any payment in kind.
SECTION 3. TRANSFER OF SHARES. The Trust shall transfer shares held of
record by any Person to any other Person upon receipt by the Trust or a Person
designated by the Trust of a written request therefor in such form and pursuant
to such procedures as may be ordered by a court of law or approved by the Board
of Trustees.
ARTICLE VII.
COMPENSATION AND LIMITATION OF LIABILITY
SECTION 1. COMPENSATION OF TRUSTEES. The Trustees as such shall be
entitled to reasonable compensation from the Trust, and they may fix the amount
of such compensation from time to time. Nothing herein shall in any way prevent
the employment of any Trustee to provide advisory, management, legal,
accounting, investment banking or other services to the Trust and to be
specially compensated for such services by the Trust.
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SECTION 2. INDEMNIFICATION AND LIMITATION OF LIABILITY. Neither the
Trustees nor the beneficial owners of shares shall be responsible or liable in
any event for any neglect or wrongdoing of any officer, agent, employee,
Investment Adviser or Principal Underwriter of the Trust, nor shall any Trustee
be responsible or liable for the act or omission of any other Trustee, nor shall
any beneficial owner of shares be responsible or liable for the act or omission
of any Trustee, and, subject to the provisions of the Bylaws, the Trust out of
its assets may indemnify and hold harmless each and every Trustee, officer of
the Trust and beneficial owner of shares from and against any and all claims,
demands, costs, losses, expenses, and damages whatsoever arising out of or
related to such Trustee's or officer's performance of his or her duties as a
Trustee or officer of the Trust; provided, that nothing herein contained shall
indemnify, hold harmless or protect any Trustee or officer from or against any
liability to the Trust or any Shareholder 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.
Every note, bond, contract, instrument, certificate or undertaking and every
other act or thing whatsoever issued, executed or done by or on behalf of the
Trust or the Board of Trustees or officers or any of them in connection with the
Trust shall be conclusively deemed to have been issued, executed or done only in
or with respect to their or his or her capacity as Trustees or Trustee or
officers or officer, and such Trustees or Trustee or officers or officer shall
not be personally liable thereon.
SECTION 3. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. The exercise by the Trustees of their powers hereunder shall be binding
upon everyone interested in or dealing with the Trust. 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 or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust, whether or not the Trust would have the power
to indemnify him or her against such liability under the provisions of this
Article.
ARTICLE VIII.
MISCELLANEOUS
SECTION 1. DELAWARE OFFICE. Pursuant to the Declaration of Trust and the
resolution of the Board, the officers of the Trust shall establish a registered
office in the State of Delaware and shall appoint as the Trust's registered
agent for service of process in the State of Delaware an individual resident of
the State of Delaware or a Delaware corporation or a foreign corporation
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authorized to transact business in the State of Delaware; in each case the
business office of such registered agent for service of process shall serve as
the registered Delaware office of the Trust.
SECTION 2. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
SECTION 3. TERMINATION OF TRUST OR SERIES. Unless terminated as provided
herein, the Trust shall continue without limitation of time. The Trust may be
terminated at any time by the Trustees without a Shareholder vote upon thirty
(30) days prior written notice to the Shareholders. Any Series (or class) may be
terminated at any time by the Trustees upon thirty (30) days prior written
notice to the Shareholders of that Series (or class). Upon termination of the
Trust (or any Series (or class), as the case maybe), after paying or otherwise
providing for all charges, taxes, expenses and liabilities held, severally, with
respect to each Series (or class) (or the applicable Series (or class), as the
case may be), whether due or accrued or anticipated as may be determined by the
Trustees, the Trust shall, in accordance with such procedures as the Trustees
consider appropriate, reduce the remaining assets held, severally, with respect
to each Series (or class) (or the applicable Series (or class), as the case may
be), to distributable form in cash or shares or other securities, and any
combination thereof, and distribute the proceeds held with respect to each
Series (or class) (or the applicable Series (or class), as the case may be), to
the Shareholders of that Series (or class), ratably according to the number of
Shares of that Series (or class) held by the several Shareholders on the date of
termination.
SECTION 4. MERGER AND CONSOLIDATION. By a majority vote of the Trustees
present at any meeting at which a quorum is present, the Board of Trustees may
cause (i) the Trust or one or more of its Series or classes to the extent
consistent with applicable law to be merged into or consolidated with another
trust, Series or Person, (ii) the Shares of the Trust or any Series or class to
be converted into beneficial interests in another business trust (or series or
class thereof), (iii) the Shares to be exchanged for assets or property under or
pursuant to any state or federal statute to the extent permitted by law or (iv)
a sale of all, or substantially all, assets of the Trust or one or more of its
Series. The Board of Trustees shall have power to prescribe the procedure
necessary or appropriate to accomplish a sale of assets, Share exchange, merger
or consolidation including the power to create one or more separate business
trusts to which all or any part of the assets, liabilities, profits or losses of
the Trust may be transferred and to provide for the conversion of Shares of the
Trust or any Series or class into beneficial interests in such separate business
trust or trusts (or series or classes thereof).
SECTION 5. AMENDMENTS. This Declaration of Trust may be restated and/or
amended at any time by an instrument in writing signed by a majority of the
Trustees then holding office. Any such restatement and/or amendment hereto shall
be effective immediately upon execution and approval. The Certificate of Trust
of the Trust may be restated and/or amended by a similar procedure, and any such
restatement and/or amendment shall be effective immediately upon filing with the
Office of the Secretary of State of the State of Delaware or upon such future
date as may be stated therein.
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SECTION 6. 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
during normal business hours. 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 amendment, references to this
instrument, and all expressions like "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 7. APPLICABLE LAW. This Declaration of Trust is created under
and is to be governed by and construed and administered according to the laws of
the State of Delaware and the DBTA, as amended from time to time. The Trust
shall be a Delaware business trust pursuant to such Act, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a business trust.
SECTION 8. PROVISIONS IN CONFLICT WITH LAW, REGULATIONS, OR BYLAWS.
(a) The provisions of the Declaration of Trust are severable, and if
the Board of Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with the
1940 Act, the regulated investment company provisions of the
Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to
have constituted a part of the Declaration of Trust; provided,
however, that such determination shall not affect any of the
remaining provisions of the Declaration of Trust or render
invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of the 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 the
Declaration of Trust in any jurisdiction.
(c) If any provision of the Declaration of Trust shall be held in
conflict with a provision of the Bylaws of the Trust, the
Declaration of Trust shall be deemed to control.
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SECTION 9. BUSINESS TRUST ONLY. It is the intention of the Trustees to
create a business trust pursuant to the DBTA, and thereby to create only the
relationship of trustee and beneficial owners within the meaning of the DBTA
between the Trustees and each Shareholder. It is not the intention of the
Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment, joint venture, or any form of legal
relationship other than a business trust pursuant to the DBTA. 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.
IN WITNESS WHEREOF, the Trustees named below do hereby make and enter
into this Declaration of Trust.
-----------------------------------------
Robert W. Kloss
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Alan Gart
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A. Gilbert Heebner
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Leo Slack
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Edward Stouch
19
