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Exhibit No. (1)(b)
PAINEWEBBER PACE SELECT ADVISORS TRUST
AMENDED AND RESTATED TRUST INSTRUMENT
September 13, 2000
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.........................................................1
ARTICLE II TRUSTEES...........................................................2
Section 1. MANAGEMENT OF THE TRUST.......................................2
Section 2. INITIAL TRUSTEES; NUMBER AND ELECTION OF TRUSTEES.............2
Section 3. TERM OF OFFICE................................................2
Section 4. VACANCIES; APPOINTMENT OF TRUSTEES............................3
Section 5. TEMPORARY VACANCY OR ABSENCE..................................3
Section 6. CHAIRMAN......................................................3
Section 7. ACTION BY THE TRUSTEES........................................3
Section 8. OWNERSHIP OF TRUST PROPERTY...................................4
Section 9. EFFECT OF TRUSTEES NOT SERVING................................4
Section 10. TRUSTEES, ETC. AS SHAREHOLDERS................................4
ARTICLE III POWERS OF THE TRUSTEES............................................4
Section 1. POWERS..,.....................................................4
Section 2. CERTAIN TRANSACTIONS..........................................8
ARTICLE IV SERIES; CLASSES; SHARES............................................8
Section 1. ESTABLISHMENT OF SERIES OR CLASS..............................8
Section 2. SHARES........................................................9
Section 3. INVESTMENT IN THE TRUST.......................................9
Section 4. ASSETS AND LIABILITIES OF SERIES..............................9
Section 5. OWNERSHIP AND TRANSFER OF SHARES.............................10
Section 6. STATUS OF SHARES; LIMITATION OF SHAREHOLDER LIABILITY........10
ARTICLE V DISTRIBUTIONS AND REDEMPTIONS......................................11
Section 1. DISTRIBUTIONS................................................11
Section 2. REDEMPTIONS..................................................11
Section 3. DETERMINATION OF NET ASSET VALUE.............................12
Section 4. SUSPENSION OF RIGHT OF REDEMPTION............................12
Section 5. REDEMPTIONS NECESSARY FOR QUALIFICATION AS REGULATED
INVESTMENT COMPANY..............................................12
ARTICLE VI SHAREHOLDERS' VOTING POWERS AND MEETINGS..........................13
Section 1. VOTING POWER.................................................13
Section 2. MEETINGS OF SHAREHOLDERS.....................................13
Section 3. QUORUM; REQUIRED VOTE........................................13
ARTICLE VII CONTRACTS WITH SERVICE PROVIDERS.................................14
Section 1. INVESTMENT ADVISER...........................................14
Section 2. PRINCIPAL UNDERWRITER........................................14
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Section 3. TRANSFER AGENCY, SHAREHOLDER SERVICES, AND
ADMINISTRATION AGREEMENTS.......................................14
Section 4. CUSTODIAN....................................................15
Section 5. PARTIES TO CONTRACTS WITH SERVICE PROVIDERS..................15
Section 6. REQUIREMENTS OF THE 1940 ACT.................................15
ARTICLE VIII EXPENSES OF THE TRUST AND SERIES................................15
ARTICLE IX LIMITATION OF LIABILITY AND INDEMNIFICATION.......................16
Section 1. LIMITATION OF LIABILITY......................................16
Section 2. INDEMNIFICATION..............................................16
Section 3. INDEMNIFICATION OF SHAREHOLDER...............................18
ARTICLE X MISCELLANEOUS......................................................19
Section 1. TRUST NOT A PARTNERSHIP......................................19
Section 2. TRUSTEE ACTION; EXPERT ADVICE; NO BOND OR SURETY.............19
Section 3. RECORD DATES.................................................19
Section 4. TERMINATION OF THE TRUST.....................................19
Section 5. REORGANIZATION...............................................20
Section 6. TRUST INSTRUMENT.............................................20
Section 7. APPLICABLE LAW...............................................21
Section 8. AMENDMENTS...................................................21
Section 9. FISCAL YEAR..................................................22
Section 10. SEVERABILITY.................................................22
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PAINEWEBBER PACE SELECT ADVISORS TRUST
AMENDED AND RESTATED TRUST INSTRUMENT
This AMENDED AND RESTATED TRUST INSTRUMENT is adopted on September 13,
2000, with respect to the business trust established by the Trustees on
September 9, 1994 and previously named first PaineWebber Consulting Fund
Product, and then Managed Accounts Services Portfolio Trust, 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 has been
changed to PaineWebber PACE Select Advisors Trust.
ARTICLE I
DEFINITIONS
Unless otherwise provided or required by the context:
(a) "By-laws" means the By-laws of the Trust adopted by the Trustees, as
amended from time to time;
(b) "Class" means the class of Shares of a Series established pursuant to
Article IV;
(c) "Commission," "Interested Person," and "Principal Underwriter" have
the meanings provided in the 1940 Act;
(d) "Covered Person" means a person so defined in Article IX, Section 2;
(e) "Delaware Act" means Chapter 38 of Title 12 of the Delaware Code
entitled "Treatment of Delaware Business Trusts," as amended from time to time;
(f) "Majority Shareholder Vote" means "the vote of a majority of the
outstanding voting securities" as defined in the 1940 Act;
(g) "Net Asset Value" means the net asset value of each Series of the
Trust, determined as provided in Article V, Section 3;
(h) "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;
(i) "Registered Investment Company" means a company registered as a
management investment company under the 1940 Act;
(j) "Series" means a series of Shares established pursuant to Article IV;
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(k) "Shareholder" means a record owner of Outstanding Shares;
(l) "Shares" means, as to a Series or any Class thereof, the equal
proportionate transferable units of beneficial interest into which the
beneficial interest of such Series of the Trust or such Class thereof shall be
divided from time to time (including whole Shares, and fractions of Shares);
(m) "Trust" means PaineWebber PACE Select Advisors Trust, and reference to
the Trust, when applicable to one or more Series, refers to each such 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 desirable to carry out that responsibility. No
Shareholder shall have any right to conduct any Trust business solely by reason
of being a Shareholder. The Trustees may execute all instruments and take all
action they deem necessary or desirable to promote the interests of the Trust.
Any determination made by the Trustees in good faith as to what is in the
interests of the Trust shall be conclusive.
Section 2. INITIAL TRUSTEES; NUMBER AND ELECTION OF TRUSTEES. The initial
Trustees shall be the persons initially signing this Trust Instrument. The
number of Trustees (other than the initial Trustees) shall be fixed from time to
time by a majority of the Trustees; provided, that there shall be at least two
(2) Trustees. The Shareholders shall elect the Trustees (other than the initial
Trustees) on such dates as the Trustees may fix from time to time. Shareholders
shall not be required to elect Trustees except as required by the 1940 Act or
under this Trust Instrument.
Section 3. TERM OF OFFICE. Each Trustee shall hold office for life or
until his or her successor is elected or the Trust terminates; except that (a)
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; (b) any Trustee may be removed with or without cause at any
time by a written instrument signed by at least two-thirds of the other
Trustees, specifying the effective date of removal; (c) any Trustee who requests
to be retired, or who has become physically or mentally incapacitated or is
otherwise unable to serve, may be retired by a written
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instrument signed by a majority of the other Trustees, specifying the effective
date of retirement; and (d) any Trustee may be removed at any meeting of the
Shareholders by a vote of at least two-thirds of the Outstanding Shares.
Section 4. VACANCIES; APPOINTMENT OF TRUSTEES. Whenever a vacancy shall
exist in the Board of Trustees, regardless of the reason for such vacancy, the
remaining Trustees shall appoint any person as they determine in their sole
discretion to fill that vacancy, consistent with the limitations under the 1940
Act. Such appointment shall be made by a written instrument signed by a majority
of the Trustees or by a resolution of the Trustees, duly adopted and recorded in
the records of the Trust, specifying the effective date of the appointment. The
Trustees may appoint a new Trustee as provided above in anticipation of a
vacancy expected to occur because of the retirement, resignation, or removal of
a Trustee, or an increase in number of Trustees, provided that such appointment
shall become effective only at or after the expected vacancy occurs. As soon as
any such Trustee has accepted his or her appointment in writing, the trust
estate shall vest in the new Trustee, together with the continuing Trustees,
without any further act or conveyance, and he or she shall be deemed a Trustee
hereunder. The power of appointment is subject to Section 16(a) of the 1940 Act.
Section 5. TEMPORARY VACANCY OR ABSENCE. Whenever a vacancy in the Board
of Trustees shall occur, until such vacancy is filled, or while any Trustee is
absent from his or her domicile (unless that Trustee has made arrangements to be
informed about, and to participate in, the affairs of the Trust during such
absence), or is physically or mentally incapacitated, the remaining Trustees
shall have all the powers hereunder and their certificate as to such vacancy,
absence, or incapacity shall be conclusive. Any Trustee may, by power of
attorney, delegate his or her powers as Trustee for a period not exceeding six
(6) months at any one time to any other Trustee or Trustees to the extent
permitted by the 1940 Act.
Section 6. 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 if the Chairman is present, shall be responsible for the execution
of policies established by the Trustees and the administration of the Trust, and
may be the chief executive, financial and/or accounting officer of the Trust.
Section 7. ACTION BY THE TRUSTEES. The Trustees shall act by majority vote
at a meeting duly called (including a meeting by telephonic or other electronic
means, 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 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 at least twenty-four hours in advance of the
meeting or by written notice mailed to his or her home or business address at
least seventy-two hours in advance of the meeting. 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. Subject to the
requirements of the 1940 Act, the Trustees by majority vote may delegate to any
Trustee or Trustees authority to approve particular matters or take
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particular actions on behalf of the Trust. Any written consent or waiver may be
provided and delivered to the Trust by facsimile or other similar electronic
mechanism.
Section 8. OWNERSHIP OF TRUST PROPERTY. The Trust Property of the Trust
and of each Series 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 the assets belonging
to the Series represented by Shares.
Section 9. 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 10. TRUSTEES, ETC. AS SHAREHOLDERS. Subject to any restrictions in
the By-laws, any Trustee, officer, agent or independent contractor of the Trust
may acquire, own and dispose of Shares to the same extent as any other
Shareholder; the Trustees may issue and sell Shares to and buy 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 exclusive and absolute control
over the Trust Property and over the business of the Trust to the same extent as
if they were the sole owners of the Trust Property and business in their own
right, but with such powers of delegation as may be permitted in this Trust
Instrument. The Trustees in all instances shall act as principals, free of the
control of the Shareholders. 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 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 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;
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(b) To subscribe for, invest in, reinvest in, purchase, or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange, distribute, or
otherwise deal in or dispose of any form of property, including cash (U.S.
currency), foreign currencies and related instruments, and securities (including
common and preferred stocks, warrants, bonds, debentures, time notes, and all
other evidences of indebtedness, negotiable or non-negotiable instruments,
obligations, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, reverse repurchase agreements, dollar rolls, convertible
securities, forward contracts, options, futures contracts, swaps, and other
financial contracts or derivative instruments) issued, guaranteed, or sponsored
by any state, territory, or possession of the United States or the District of
Columbia or their political subdivisions, agencies, or instrumentalities, or by
the U.S. government, any foreign government, or any agency, instrumentality, or
political subdivision thereof, or by any international instrumentality, or by
any bank, savings institution, corporation, or other business entity organized
under the laws of the United States (including a Registered Investment Company
or any series thereof, subject to the provisions of the 1940 Act) or under
foreign laws, without regard to whether any such securities mature before or
after the possible termination of the Trust; 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; 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;
(c) To adopt By-laws not inconsistent with this Trust Instrument providing
for the conduct of the business of the Trust and to amend and repeal them to the
extent such right is not reserved to the Shareholders;
(d) To elect and remove such officers and appoint and terminate such
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, administrator, underwriter or other service provider;
(j) To sell, exchange or otherwise dispose of any or all of the assets of
the Trust, subject to Article X, Section 4;
(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 as the Trustees shall deem
proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
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(1) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities or other property;
(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 in either case 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 incur and pay all expenses that in the Trustees' opinion are
necessary or incidental to carry out any of the purposes of this Trust
Instrument; to pay reasonable compensation to themselves as Trustees from the
Trust Property or the assets belonging to any appropriate Series or Class; to
pay themselves such compensation for special services, including legal and
brokerage services, and such reimbursement for expenses reasonably incurred by
themselves on behalf of the Trust or any Series or Class, as they in good faith
may deem reasonable; and to fix the compensation of all officers and employees
of the Trust;
(p) 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;
(q) 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;
(r) 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;
(s) To declare and make distributions of income and of capital gains to
Shareholders in the manner hereinafter provided for;
(t) To borrow money or otherwise obtain credit and to secure the same by
mortgaging, pledging, or otherwise subjecting as security any assets of the
Trust, including the lending of portfolio securities, and to endorse, guarantee
or undertake the performance of any obligation, contract, or engagement of any
other person, firm, association, or corporation;
(u) To establish, from time to time, a minimum total investment for
Shareholders in the Trust or in one or more Series or Classes, and to require
the redemption of the Shares of any Shareholders whose investment is less than
such minimum;
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(v) To purchase, and pay for, out of Trust Property or the assets
belonging to any appropriate Series, insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, and/or independent
contractors of the Trust (including the investment adviser of any Series)
against all claims arising by reason of holding any such position or by reason
of any action taken or omitted by any such person in such capacity, whether or
not the Trust would have the power to indemnify such person against such claim;
(w) To establish committees for such purposes, with such membership, and
with such responsibilities as the Trustees may consider proper, including a
committee consisting of fewer than all of the Trustees then in office, which may
act for and bind the Trustees and the Trust with respect to the institution,
prosecution, dismissal, settlement, review or investigation of any legal action,
suit or proceeding, pending or threatened to be brought before any court,
administrative agency, or other adjudicatory body;
(x) To interpret the investment policies, practices, or limitations of any
Series;
(y) To establish a registered office and have a registered agent in the
State of Delaware;
(z) 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;
(aa) To carry on any other business in connection with or incidental to
any of the 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; and
(bb) To select such name for the Trust, or any Series or Class, as the
Trustees deem proper in their discretion, without Shareholder approval, in which
event the Trust may hold its property and conduct its activities under such
other name.
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, buy any securities from or sell any
securities to, or lend any assets of the Trust to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any investment adviser, administrator,
distributor or transfer agent for the Trust or with any Interested Person of
such
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person. The Trust may employ any such person or entity in which such person
is an Interested Person, as broker, legal counsel, registrar, investment
adviser, administrator, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
ARTICLE IV
SERIES; CLASSES; SHARES
Section 1. ESTABLISHMENT OF SERIES OR CLASS. The Trust shall consist of
one or more separate and distinct Series. The Trustees hereby establish the
Series listed in Schedule A attached hereto and made a part hereof. Each
additional Series 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 and hereby establish the Classes listed in Schedule A. Each additional
Class shall be established by the adoption of a resolution by the Trustees and
shall be effective upon the date stated therein (or if no such date is stated,
upon the date of such adoption). In such case each Class of a Series shall
represent a proportional beneficial interest in the assets of that Series and
have identical voting, dividend, liquidation and other rights and the same terms
and conditions, except that expenses, costs, charges, and reserves allocated to
a Class in accordance with Article IV, Section 4 may be borne solely by such
Class as determined by the Trustees and a Series or Class may have exclusive
voting rights with respect to matters affecting only that Series or Class. 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 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, provided that, if Classes of a Series are outstanding,
each holder of Shares of a Class shall be entitled to receive his or her pro
rata share of all distributions made with respect to such Class of the Series.
Upon redemption of his or her Shares, such Shareholder shall be paid solely out
of the assets and property of such Series.
Section 2. SHARES. The beneficial interest in the Trust shall be divided
into Shares of one or more Series or Classes established by the Trustees. The
number of Shares of the Trust and of each Series and Class is unlimited and each
Share shall have a par value of $0.001 per Share. All Shares issued hereunder,
including Shares issued in connection with a dividend or other distribution in
Shares or a split or reverse split of Shares, 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 at such times and on such terms and conditions as they deem
appropriate; to establish and to change in any manner Shares of any Series or
Class with such preferences, terms of conversion, voting powers, rights and
privileges as the Trustees may determine (but the Trustees may not change
Outstanding Shares in a manner materially adverse to the Shareholders of such
Shares); to divide or combine the Shares of any Series or Class into a greater
or lesser number; to classify or reclassify any unissued Shares of any Series or
Class into one or more Series or Classes of Shares; to abolish any one or more
Series or Class of Shares; to issue Shares to acquire other assets (including
assets subject to, and in connection with, the
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assumption of liabilities) and businesses; and to take such other action with
respect to the Shares as the Trustees may deem desirable.
Section 3. INVESTMENT IN THE TRUST. The Trustees shall accept investments
in any Series from such persons and on such terms as they may from time to time
authorize. At the Trustees' discretion, such investments, subject to applicable
law, may be in the form of cash or securities and other instruments 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 and fractional Shares at the Net Asset Value per Share next
determined after the investment is received or accepted in good 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, or (b) 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.
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,
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 giving of
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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 or the Delaware Act. 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 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
may 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. The Trustees may adopt and offer to
Shareholders
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such dividend reinvestment plans, cash dividend payout plans or similar plans as
the Trustees deem appropriate.
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 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 or any prospectus or statement of additional information
contained therein, as supplemented. 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 or any
prospectus or statement of additional information contained therein as
supplemented.
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. The Trustees may require Shareholders
to redeem Shares for any reason under terms set by the Trustees, including the
failure of a Shareholder to supply a personal identification number if required
to do so, or to have the minimum investment required, or to pay when due for the
purchase of Shares issued to him or her. To the extent permitted by law, the
Trustees may retain the proceeds of any redemption of Shares required by them
for payment of amounts due and owing by a Shareholder to the Trust or any Series
or Class. Notwithstanding the foregoing, the Trustees may postpone payment of
the redemption price and may suspend the right of the Shareholders to require
any Series or Class to redeem Shares during any period of time when and to the
extent permissible under the 1940 Act.
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 manager,
administrator or 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 regular
trading on the New York Stock Exchange on each day for all or part of which such
Exchange is open for regular trading.
Section 4. SUSPENSION OF RIGHT OF REDEMPTION. If, as referred to in
Section 2 of this Article, the Trustees postpone payment of the redemption price
and suspend the right of Shareholders to redeem their Shares, such suspension
shall take effect at the time the Trustees shall specify, but not later than the
close of business on the business day next following the declaration of
suspension. Thereafter Shareholders shall have no right of redemption or payment
until the Trustees declare the end of the suspension. If the right of redemption
is suspended, a Shareholder may either withdraw his request for redemption or
receive payment based on the Net Asset Value per Share next determined after the
suspension terminates.
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Section 5. REDEMPTIONS NECESSARY FOR QUALIFICATION AS REGULATED INVESTMENT
COMPANY. If the Trustees shall determine that direct or indirect ownership of
Shares of any Series has or may become concentrated in any person to an extent
which would disqualify any Series as a regulated investment company under the
Internal Revenue Code, then the Trustees shall have the power (but not the
obligation) by lot or other means they deem equitable to (a) call for redemption
by any such person of a number, or principal amount, of Shares sufficient to
maintain or bring the direct or indirect ownership of Shares into conformity
with the requirements for such qualification and (b) refuse to transfer or issue
Shares to any person whose acquisition of Shares in question would, in the
Trustees' judgment, result in such disqualification. Any such redemption shall
be effected at the redemption price and in the manner provided in this Article.
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 authority.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. VOTING POWER. The Shareholders shall have power to vote only
with respect to (a) the election of Trustees as provided in Section 2 of this
Article; (b) the removal of Trustees as provided in Article II, Section 3(d);
(c) any investment advisory or management contract as provided in Article VII,
Section 1; (d) any termination of the Trust as provided in Article X, Section 4;
(e) the amendment of this Trust Instrument to the extent and as provided in
Article X, Section 8; and (f) such additional matters relating to the Trust as
may be required or authorized by law, this Trust Instrument, or 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, except (a) when required by the 1940 Act, Shares
shall be voted in the aggregate and not by individual Series, and (b) when the
Trustees have determined that the matter affects only the interests of one or
more Classes, then the Shareholders of only such Class 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 by proxy or in any
manner provided for in the By-laws. The By-laws may provide that proxies may be
given by any electronic or telecommunications device or in any other manner, but
if a proposal by anyone other than the officers or Trustees is submitted to a
vote of the Shareholders of any Series or Class, or if there is a proxy contest
or proxy solicitation or proposal in opposition to any proposal by the officers
or Trustees, Shares may be voted only in person or by written proxy. Until
Shares of a Series or Class thereof are issued, as to that Series or Class 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 (but
not the first Shareholders' meeting of a Series that is not also the first
Shareholders' meeting of the Trust) shall be held to elect Trustees at such time
and place as the Trustees designate. Annual meetings
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shall not be required. 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 ten percent of the Outstanding
Shares of such Series or Class, or at least ten percent of the Outstanding
Shares of the Trust 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-third of the Outstanding Shares of
each Series or Class, or one-third of the Outstanding Shares of the Trust,
entitled to vote in person or by proxy shall be a quorum for the transaction of
business at a Shareholders' meeting with respect to such Series or 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
Majority Shareholder Vote or other larger vote is required by law, this Trust
Instrument or the By-laws, a majority of the Outstanding Shares voted, in person
or by proxy, shall decide any matters to be voted upon with respect to the
entire Trust and a plurality of such Outstanding Shares voted shall elect a
Trustee; provided, that if this Trust Instrument or applicable law permits or
requires that Shares be voted on any matter by an individual Series or Class,
then a majority of the Outstanding Shares voted, in person or by proxy, of that
Series or Class (or, if required by law, regulation, Commission order, or
no-action letter, a Majority Shareholder Vote or other larger vote of that
Series or Class) voted, in person or by proxy, voted on the matter shall decide
that matter insofar as that Series or Class is concerned. 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. The Trustees may enter into one or more
investment advisory or management 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
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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 Section 17(f) of the 1940 Act and the
rules thereunder or as otherwise permitted by the Commission of its staff. 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, (a) to 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 contracts 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.
Section 6. REQUIREMENTS OF THE 1940 ACT. 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, if applicable.
ARTICLE VIII
EXPENSES OF THE TRUST AND SERIES
Subject to Article IV, Section 4, the Trust or a particular Series shall
pay, or shall reimburse the Trustees 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; 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
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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 and proxy
solicitations therefor (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; compensation of the Trust's officers and
employees and costs of other personnel performing services for the Trust or any
Series; costs of Trustee meetings; Commission registration 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. The Trustees shall have a lien on the assets belonging
to the appropriate Series, or in the case of an expense allocable to more than
one Series, on the assets of each such Series, prior to any rights or interests
of the Shareholders thereto, for the reimbursement to them of such expenses,
disbursements, losses and liabilities.
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. Any
written instrument or obligation on behalf of the Trust or any Series may
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 subsections (b) and (c) below:
(i) every person who is, or has been, a Trustee or an officer,
employee, investment manager and administrator, director, officer
or employee of an investment manager and administrator, investment
adviser 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,
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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; and
(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 who
is, or has been, an investment manager and administrator, director, officer or
employee of an investment manager and administrator, an investment adviser or an
agent of the Trust and:
(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,
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, 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) No indemnification shall be provided hereunder to a Covered Person who
is, or has been, a Trustee or an officer or employee of the Trust, and
(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
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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).
(d) The rights of indemnification herein provided may be insured against
by policies maintained by the Trust, shall be severable, shall not be exclusive
of or affect any other rights to which any Covered Person may now or hereafter
be entitled, and shall inure to the benefit of the heirs, executors and
administrators of a Covered Person.
(e) 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.
(f) 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 SHAREHOLDER. 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 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.
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ARTICLE X
MISCELLANEOUS
Section 1. TRUST NOT A PARTNERSHIP. This Trust Instrument creates a trust
and not a partnership. No Trustee shall have any power to bind personally either
the Trust's officers or any Shareholder.
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
ninety (90) 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 a Majority Shareholder Vote of the Trust or of each Series
to be affected, the Trustees may
(i) sell and convey all or substantially all of the assets of the
Trust or any affected Series to another Series or to another entity
which is a Registered Investment Company, or is a series thereof,
for adequate consideration, which may include the assumption of all
outstanding obligations, taxes and other liabilities, accrued or
contingent, of the Trust or any affected Series, and which may
include shares of or interests in such Series, entity, or series,
thereof; or
(ii) 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 in either (i) or (ii), by such assumption or
otherwise, 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 then outstanding; however, the payment to any particular Class of such
Series may be reduced by any fees, expenses or charges allocated to that Class.
Nothing in this Trust Instrument shall preclude the Trustees from distributing
such remaining proceeds or assets so that holders of the Shares of a particular
Class of the Trust or any affected Series receive as their
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ratable distribution shares solely of an analogous class, as determined by the
Trustees, of a Registered Investment Company or series thereof.
(b) The Trustees may take any of the actions specified in subsection (a)
(i) and (ii) above without obtaining a Majority Shareholder Vote of the Trust or
any Series if a majority of the Trustees determines that the continuation of the
Trust or Series is not in the best interests of the Trust, such Series, or their
respective Shareholders as a result of factors or events adversely affecting the
ability of the Trust or such Series to conduct its business and operations in an
economically viable manner. Such factors and events may include the inability of
the Trust or a Series to maintain its assets at an appropriate size, changes in
laws or regulations governing the Trust or the Series or affecting assets of the
type in which the Trust or Series invests, or economic developments or trends
having a significant adverse impact on the business or operations of the Trust
or such Series.
(c) 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. REORGANIZATION. Notwithstanding anything else herein, to change
the Trust's form of organization the Trustees may, without Shareholder approval,
(a) cause the Trust to merge or consolidate with or into one or more entities,
if the surviving or resulting entity is the Trust or another open-end management
investment company under the 1940 Act, or a series thereof, that will succeed to
or assume the Trust's registration under the 1940 Act, or (b) cause the Trust to
incorporate to the extent permitted by law. Any agreement of merger or
consolidation or certificate of merger may be signed by a majority of Trustees
and facsimile signatures conveyed by electronic or telecommunication means shall
be valid.
Pursuant to and in accordance with the provisions of Section 3815(f) of
the Delaware Act, an agreement of merger or consolidation approved by the
Trustees in accordance with this Section 5 may effect any amendment to the Trust
Instrument or effect the adoption of a new trust instrument of the Trust if it
is the surviving or resulting trust in the merger or consolidation.
Section 6. TRUST INSTRUMENT. The original or a copy of this Trust
Instrument and of each amendment hereto or Trust Instrument supplemental 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 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.
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Section 7. APPLICABLE LAW. This Trust Instrument and the Trust created
hereunder are governed by and shall be 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 8. AMENDMENTS. The Trustees may, without any Shareholder vote,
amend or otherwise supplement this Trust Instrument by making an amendment, a
Trust Instrument supplemental hereto or an amended and restated trust
instrument; provided, that Shareholders shall have the right to vote on any
amendment (a) which would affect the voting rights of Shareholders granted in
Article VI, Section 1, (b) to this Section 8, (c) required to be approved by
Shareholders by law or by the Trust's registration statement(s) filed with the
Commission, or (d) submitted to them by the Trustees in their discretion. Any
amendment submitted to Shareholders which the Trustees determine would affect
the Shareholders of any Series shall be authorized by vote of the Shareholders
of such Series and no vote shall be required of Shareholders of a Series not
affected. Notwithstanding anything else herein, any amendment to Article IX
which would have the effect of reducing the indemnification and other rights
provided thereby to Trustees, officers, employees, and agents of the Trust or to
Shareholders or former Shareholders, and any repeal or amendment of this
sentence shall each require the affirmative vote of the holders of two-thirds of
the Outstanding Shares of the Trust entitled to vote thereon.
Section 9. 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 10. 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 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,
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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 such provision in any other jurisdiction or any other
provision of this Trust Instrument.
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SCHEDULE A
SERIES OF THE TRUST
PACE Money Market Investments
PACE Government Securities Fixed Income Investments
PACE Intermediate Fixed Income Investments
PACE Strategic Fixed Income Investments
PACE Municipal Fixed Income Investments
PACE Global Fixed Income Investments
PACE Large Company Value Equity Investments
PACE Large Company Growth Equity Investments
PACE Small/Medium Company Value Equity Investments
PACE Small/Medium Company Growth Equity Investments
PACE International Equity Investments
PACE International Emerging Markets Equity Investments
CLASSES OF SHARES OF SERIES
An unlimited number of shares of beneficial interest have been established by
the Board as Class P shares of the Series designated as PACE Money Market
Investments.
An unlimited number of shares of beneficial interest have been established by
the Board as Class A shares, Class B shares, Class C shares, Class Y shares
and Class P shares of each of the other Series listed above. Each of the
Class A shares, Class B shares, Class C shares, Class Y shares and Class P
shares of a Series represents interests in the assets of only that Series and
has the same preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of shares, except as provided in the Trust's Trust
Instrument and as set forth below with respect to the Class B shares of the
Series:
1. Each Class B share, other than a share purchased through the
reinvestment of a dividend or a distribution with respect to the
Class B share, shall be converted automatically, and without any action
or choice on the part of the holder thereof, into Class A shares of the
same Series, based on the relative net asset value of each such class
at the time of the calculation of the net asset value of such class of
shares on the date that is the first Business Day (as defined in the
Series' prospectus and/or statement of additional information) of the
month in which the sixth anniversary of the issuance of such Class B
shares occurs (which, for the purpose of calculating the holding period
required for conversion, shall mean (i) the date on which the issuance
of such Class B shares occurred or (ii) for Class B shares obtained
through an exchange, the date on which the issuance of the Class B
shares of an eligible PaineWebber fund occurred, if such shares were
exchanged directly, or through a series of exchanges for the Series'
Class B shares (the "Conversion Date")).
2. Each Class B share purchased through the reinvestment of a dividend or
a distribution with respect to the Class B shares and the dividends and
distributions on such shares shall be segregated in a separate
sub-account on the stock records of the Series for
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each of the holders of record thereof. On any Conversion Date, a number
of the shares held in the sub-account of the holder of record of the
share or shares being converted, calculated in accordance with the next
following sentence, shall be converted automatically, and without any
action or choice on the part of the holder thereof, into Class A shares
of the same Series. The number of shares in the holder's sub-account so
converted shall bear the same relation to the total number of shares
maintained in the sub-account on the Conversion Date as the number of
shares of the holder converted on the Conversion Date pursuant to
Paragraph 2(a) hereof bears to the total number of Class B shares of
the holder on the Conversion Date not purchased through the automatic
reinvestment of dividends or distributions with respect to the Class B
shares.
3. The number of Class A shares into which a Class B share is converted
pursuant to paragraphs 1 and 2 hereof shall equal the number (including
for this purpose fractions of a share) obtained by dividing the net
asset value per share of the Class B shares for purposes of sales and
redemptions thereof at the time of the calculation of the net asset
value on the Conversion Date by the net asset value per share of the
Class A shares for purposes of sales and redemptions thereof at the
time of the calculation of the net asset value on the Conversion Date.
4. On the Conversion Date, the Class B shares converted into Class A
shares will cease to accrue dividends and will no longer be outstanding
and the rights of the holders thereof will cease (except the right to
receive declared but unpaid dividends to the Conversion Date).
For purposes of Paragraph 1 above, the term "eligible PaineWebber fund" includes
any and all mutual funds for which PaineWebber Incorporated or Mitchell Hutchins
Asset Management Inc. serves as investment adviser that offer shares with a
contingent deferred sales charge imposed upon certain redemptions of such shares
and that are exchangeable with the Class B shares of the Series.
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IN WITNESS WHEREOF, the undersigned, being all the Trustees of the Trust,
have executed this Trust Instrument as of the date and year first above written.
/s/Margo N. Alexander /s/Morton L. Janklow
--------------------- --------------------
Margo N. Alexander Morton L. Janklow
/s/David J. Beaubien /s/Brian M. Storms
-------------------- ------------------
David J. Beaubien Brian M. Storms
/s/E. Garrett Bewkes, Jr. /s/William D. White
------------------------- -------------------
E. Garrett Bewkes, Jr. William D. White
/s/William W. Hewitt, Jr. /s/M. Cabell Woodward, Jr.
------------------------- --------------------------
William W. Hewitt, Jr. M. Cabell Woodward, Jr.
