CION ARES DIVERSIFIED CREDIT FUND
AMENDED AND RESTATED DECLARATION OF
TRUST
Dated as of December 22, 2017
TABLE OF CONTENTS
Page
A
R
T
I
C
L
E
I
THE TRUST
1
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1
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Name
1
1
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2
Trust Purpose
1
1
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3
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Definitions
1
A
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T
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C
L
E
I
I
TRUSTEES
2
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1
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Number
2
2
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2
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Term and Election
3
2
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3
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Resignation and Removal
3
2
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4
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Vacancies
3
2
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5
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Meetings
3
2
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6
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Trustee Action by Written Consent
4
2
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7
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Officers
4
2
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8
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Chairman
4
A
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T
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C
L
E
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I
I
POWERS AND DUTIES OF TRUSTEES
3
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1
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General
4
3
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2
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Investments
4
3
..
3
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Issuance and Repurchase of Shares
5
3
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4
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Borrow Money or Utilize Leverage
5
3
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5
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Delegation; Committees
5
3
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6
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Collection and Payment
5
3
..
7
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Expenses
5
3
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8
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Bylaws
6
3
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9
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Miscellaneous Powers
6
3
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1
0
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Further Powers
6
A
R
T
I
C
L
E
I
V
ADVISORY, MANAGEMENT AND DISTRIBUTION ARRANGEMENTS
4
..
1
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Advisory and Management Arrangements
6
4
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2
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Distribution Arrangements
6
4
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3
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Parties to Contract
7
A
R
T
I
C
L
E
V
LIMITATIONS OF LIABILITY AND INDEMNIFICATION
5
..
1
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No Personal Liability of Shareholders, Trustees, etc.
7
5
..
2
..
Mandatory Indemnification
7
5
..
3
..
No Bond Required of Trustees
8
5
..
4
..
No Duty of Investigation; No Notice in Trust Instruments, etc.
8
5
..
5
..
Reliance on Experts, etc.
8
A
R
T
I
C
L
E
V
I
SHARES OF BENEFICIAL INTEREST
6.1.
B
e
n
e
f
i
c
i
a
l
I
n
t
e
r
e
s
t
9
6.2.
O
t
h
e
r
S
e
c
u
r
i
t
i
e
s
9
6.3.
R
i
g
h
t
s
o
f
S
h
a
r
e
h
o
l
d
e
r
s
9
6.4.
E
x
c
h
a
n
g
e
P
r
i
v
i
l
e
g
e
9
6.5.
T
r
u
s
t
O
n
l
y
9
6.6.
I
s
s
u
a
n
c
e
o
f
S
h
a
r
e
s
9
6.7.
R
e
g
i
s
t
e
r
o
f
S
h
a
r
e
s
1
0
6.8.
T
r
a
n
s
f
e
r
A
g
e
n
t
a
n
d
R
e
g
i
s
t
r
a
r
1
0
6.9.
T
r
a
n
s
f
e
r
o
f
S
h
a
r
e
s
1
0
6.10.
N
o
t
i
c
e
s
1
0
6.11.
D
e
r
i
v
a
t
i
v
e
A
c
t
i
o
n
s
1
0
ARTICLE VII
D
E
T
E
R
M
I
N
A
T
I
O
N
O
F
N
E
T
A
S
S
E
T
V
A
L
U
E
7.1.
N
e
t
A
s
s
e
t
V
a
l
u
e
1
1
7.2.
D
i
s
t
r
i
b
u
t
i
o
n
s
t
o
S
h
a
r
e
h
o
l
d
e
r
s
1
1
7.3.
P
o
w
e
r
t
o
M
o
d
i
f
y
F
o
r
e
g
o
i
n
g
P
r
o
c
e
d
u
r
e
s
1
1
ARTICLE VIII
C
U
S
T
O
D
I
A
N
S
8.1.
A
p
p
o
i
n
t
m
e
n
t
a
n
d
D
u
t
i
e
s
1
2
8.2.
C
e
n
t
r
a
l
C
e
r
t
i
f
i
c
a
t
e
S
y
s
t
e
m
1
2
ARTICLE IX
R
E
P
U
R
C
H
A
S
E
S
O
F
S
H
A
R
E
S
9.1.
R
e
p
u
r
c
h
a
s
e
o
f
S
h
a
r
e
s
1
2
9.2.
D
i
s
c
l
o
s
u
r
e
o
f
H
o
l
d
i
n
g
1
2
ARTICLE X
S
H
A
R
E
H
O
L
D
E
R
S
10.1.
M
e
e
t
i
n
g
s
o
f
S
h
a
r
e
h
o
l
d
e
r
s
1
3
10.2.
V
o
t
i
n
g
1
3
10.3.
N
o
t
i
c
e
o
f
M
e
e
t
i
n
g
a
n
d
R
e
c
o
r
d
D
a
t
e
1
3
10.4.
Q
u
o
r
u
m
a
n
d
R
e
q
u
i
r
e
d
V
o
t
e
1
3
10.5.
P
r
o
x
i
e
s
,
e
t
c
..
1
4
10.6.
R
e
p
o
r
t
s
1
4
10.7.
I
n
s
p
e
c
t
i
o
n
o
f
R
e
c
o
r
d
s
1
4
10.8
S
h
a
r
e
h
o
l
d
e
r
A
c
t
i
o
n
b
y
W
r
i
t
t
e
n
C
o
n
s
e
n
t
1
4
10.9.
D
e
l
i
v
e
r
y
b
y
E
l
e
c
t
r
o
n
i
c
T
r
a
n
s
m
i
s
s
i
o
n
o
r
O
t
h
e
r
w
i
s
e
1
4
ARTICLE XI
D
U
R
A
T
I
O
N
;
T
E
R
M
I
N
A
T
I
O
N
O
F
T
R
U
S
T
;
A
M
E
N
D
M
E
N
T
;
E
T
C
..
11.1.
D
u
r
a
t
i
o
n
1
4
11.2.
T
e
r
m
i
n
a
t
i
o
n
1
5
11.3.
A
m
e
n
d
m
e
n
t
P
r
o
c
e
d
u
r
e
1
5
11.4.
S
u
b
s
i
d
i
a
r
i
e
s
1
5
ARTICLE XII
M
I
S
C
E
L
L
A
N
E
O
U
S
12.1.
F
i
l
i
n
g
1
5
12.2.
R
e
s
i
d
e
n
t
A
g
e
n
t
1
6
12.3.
G
o
v
e
r
n
i
n
g
L
a
w
1
6
12.4
E
x
c
l
u
s
i
v
e
D
e
l
a
w
a
r
e
J
u
r
i
s
d
i
c
t
i
o
n
1
6
12.5.
C
o
u
n
t
e
r
p
a
r
t
s
1
7
12.6.
R
e
l
i
a
n
c
e
b
y
T
h
i
r
d
P
a
r
t
i
e
s
1
7
12.7.
P
r
o
v
i
s
i
o
n
s
i
n
C
o
n
f
l
i
c
t
w
i
t
h
L
a
w
o
r
R
e
g
u
l
a
t
i
o
n
1
7
CION ARES DIVERSIFIED CREDIT FUND
AMENDED AND RESTATED DECLARATION OF
TRUST
AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration") made as of the 22nd day of
December 2017, by the Trustee hereunder, and by the
Shareholders as hereinafter provided.
WHEREAS, the Trust has been formed to carry on business as
set forth more particularly hereinafter;
WHEREAS, the Trust is authorized to issue an unlimited
number of its Shares all in accordance with the provisions
hereinafter set forth;
WHEREAS, this Declaration amends and restates in its
entirety that certain Amended and Restated Declaration of
Trust dated as of December 15, 2016;
WHEREAS, the Trustee has agreed to manage all property
coming into his hands as Trustee of a Delaware statutory trust
in accordance with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust shall
constitute a statutory trust under the Delaware Statutory Trust
Act and that this Declaration and the Bylaws shall constitute
the governing instrument of the Trust.
NOW, THEREFORE, the Trustee hereby declares that he will
hold all cash, securities, and other assets which he may from
time to time acquire in any manner as Trustee hereunder IN
TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the
Shareholders from time to time of Shares as hereinafter set
forth.
ARTICLE I
THE TRUST
1.1. Name. This Trust shall be known as the "CION Ares
Diversified Credit Fund" and the Trustees shall conduct the
business of the Trust under that name or any other name or
names as they may from time to time determine. Any name
change shall become effective upon the execution by a
majority of the then Trustees of an instrument setting forth the
new name and the filing of a certificate of amendment
pursuant to Section 3810(b) of the Delaware Statutory Trust
Act. Any such instrument shall not require the approval of the
Shareholders, but shall have the status of an amendment to this
Declaration.
1.2. Trust Purpose. The purpose of the Trust is to conduct,
operate and carry on the business of a closed-end management
investment company registered under the 1940 Act. In
furtherance of the foregoing, it shall be the purpose of the
Trust to do everything necessary, suitable, convenient or
proper for the conduct, promotion and attainment of any
businesses and purposes which at any time may be incidental
or may appear conducive or expedient for the accomplishment
of the business of a closed-end management investment
company registered under the 1940 Act and which may be
engaged in or carried on by a trust organized under the
Delaware Statutory Trust Act, and in connection therewith the
Trust shall have the power and authority to engage in the
foregoing and may exercise all of the powers conferred by the
laws of the State of Delaware upon a Delaware statutory trust.
1.3. Definitions. As used in this Declaration, the following
terms shall have the following meanings:
(a) The "1940 Act" refers to the Investment
Company Act of 1940 and the rules and regulations
promulgated thereunder and exemptions granted therefrom, as
amended from time to time.
(b) The terms "Affiliated Person," "Assignment,"
"Interested Person" and "Principal Underwriter" shall have the
meanings given them in the 1940 Act.
(c) "Bylaws" shall mean the Bylaws of the Trust, as
amended from time to time by the Trustees.
(d) "Code" shall mean the Internal Revenue Code of
1986, as amended, and the regulations promulgated
thereunder.
(e) "Commission" shall mean the Securities and
Exchange Commission.
(f) "Declaration" shall mean this Amended and
Restated Declaration of Trust, as amended, supplemented or
amended and restated from time to time.
(g) "Delaware General Corporation Law" means the
Delaware General Corporation Law, 8 Del. C. ? 100, et. seq.,
as amended from time to time.
(h) "Delaware Statutory Trust Act" shall mean the
provisions of the Delaware Statutory Trust Act, 12 Del. C. ?
3801, et. seq., as such Act may be amended from time to time.
(i) "Fiscal Year" means each period commencing on
January 1 of each year and ending on December 31 of that
year (or on the date of a final distribution made in accordance
with Section 11.2 of this Declaration), unless the Trustees
designate another fiscal year for the Trust.
(j) "Fundamental Policies" shall mean the investment
policies and restrictions as set forth from time to time in any
Registration Statement of the Trust filed with the Commission
and designated as fundamental policies therein, as they may be
amended from time to time in accordance with the
requirements of the 1940 Act.
(k) "Majority Shareholder Vote" shall mean "a
majority of the outstanding voting securities" (as such term is
defined in the 1940 Act) of the Trust voted on any matter to be
voted on by the Shareholders with all shares entitled to vote
voting together as a single class.
(l) "Person" shall mean and include individuals,
corporations, partnerships, trusts, limited liability companies,
associations, joint ventures and other entities, whether or not
legal entities, and governments and agencies and political
subdivisions thereof.
(m) "Prospectus" shall mean the Prospectus of the
Trust, if any, as in effect from time to time under the
Securities Act of 1933, as amended.
(n) "Shareholders" shall mean as of any particular
time the holders of record of outstanding Shares at such time.
(o) "Shares" shall mean the transferable units of
beneficial interest into which the beneficial interest in the
Trust shall be divided from time to time and includes fractions
of Shares as well as whole Shares.
(p) "Trust" shall mean the statutory trust governed by
this Declaration and the Bylaws, as amended from time to
time, inclusive of each such amendment.
(q) "Trust Property" shall mean as of any particular
time any and all property, real or personal, tangible or
intangible, which at such time is owned or held by or for the
account of the Trust or the Trustees in such capacity.
(r) "Trustees" shall mean the signatory to this
Declaration, so long as he shall continue in office in
accordance with the terms hereof, and all other persons who at
the time in question have been duly elected or appointed and
have qualified as trustees in accordance with the provisions
hereof and are then in office.
ARTICLE II
TRUSTEES
2.1. Number. As of the date hereof, the number of Trustees
shall be nine (9) and such Trustees shall be the signatories
hereto. Thereafter, the number of Trustees shall be determined
by a written instrument signed by a majority of the Trustees
then in office, provided that the number of Trustees shall be
no less than one (1) and no more than fifteen (15). No
reduction in the number of Trustees shall have the effect of
removing any Trustee from office prior to the expiration of his
or her term. Trustees need not own Shares and may succeed
themselves in office.
2.2. Term and Election. The term of office of a Trustee shall
continue until death, resignation or removal of a Trustee.
Subject to the provisions of the 1940 Act, the Trustees at any
time may appoint individuals to fill vacancies on the Board of
Trustees. Each Trustee elected shall hold office until his or her
successor shall have been duly elected and qualified.
2.3. Resignation and Removal. Any of the Trustees may resign
from office (without need for prior or subsequent accounting)
by an instrument in writing signed by such Trustee and
delivered or mailed to the Trustees or the Chairman (if any),
the President, or the Secretary and such resignation shall be
effective upon such delivery, or at a later date according to the
terms of the instrument. Any of the Trustees may be removed
(provided the aggregate number of Trustees after such
removal shall not be less than the minimum number required
by Section 2.1 hereof) at any time for cause and only by the
affirmative vote of at least two-thirds of the Trustees votes
entitled to be cast generally in the election of trustees. For the
purpose of this paragraph, "cause" shall mean, with respect to
any particular director, conviction of a felony or a final
judgment of a court of competent jurisdiction holding that
such director caused demonstrable, material harm to the
Corporation through bad faith or active and deliberate
dishonesty. Additionally, any of the Trustees may be removed
(provided the aggregate number of Trustees after such
removal shall not be less than the minimum number required
by Section 2.1 hereof) at any time without cause by the
affirmative vote of all other Trustees votes entitled to be cast
generally in the election of trustees. Upon the resignation or
removal of a Trustee, each such resigning or removed Trustee
shall execute and deliver such documents as the remaining
Trustees shall require for the purpose of conveying to the
Trust or the remaining Trustees any Trust Property held in the
name of such resigning or removed Trustee. Upon the
incapacity or death of any Trustee, such Trustee's legal
representative shall execute and deliver on such Trustee's
behalf such documents as the remaining Trustees shall require
as provided in the preceding sentence.
2.4. Vacancies. Whenever a vacancy in the Board of Trustees
shall occur, the remaining Trustees may fill such vacancy by
appointing any individual as they may determine in their sole
discretion, consistent with the limitations under the 1940 Act,
by a majority of the Trustees then in office or may leave such
vacancy unfilled or may reduce the number of Trustees;
provided the aggregate number of Trustees after such
reduction shall not be less than the minimum number required
by Section 2.1 hereof. Any vacancy created by an increase in
Trustees may be filled by the appointment of an individual
made by a majority of the Trustees then in office. 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 the number of Trustees, provided that such appointment
shall become effective only at or after the expected vacancy
occurs. No vacancy shall operate to annul this Declaration or
to revoke any existing agency created pursuant to the terms of
this Declaration. Whenever a vacancy in the number of
Trustees shall occur, until such vacancy is filled as provided
herein, the Trustees in office, regardless of their number, shall
have all the powers granted to the Trustees and shall discharge
all the duties imposed upon the Trustees by this Declaration.
2.5. Meetings. Meetings of the Trustees shall be held from
time to time upon the call of the Chairman, if any, or the
President, the Secretary or any three Trustees. Regular
meetings of the Trustees may be held without call or notice at
a time and place fixed by the Bylaws or by resolution of the
Trustees. Notice of any other meeting shall be given by the
Secretary and shall be delivered to the Trustees orally or via
electronic transmission not less than 24 hours, or in writing
not less than 72 hours, before the meeting, but may be waived
in writing by any Trustee either before or after such meeting.
The attendance of a Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Trustee
attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting has
not been properly called or convened. Any time there is more
than one Trustee, a quorum for all meetings of the Trustees
shall be fifty-five percent (55%) of the Trustees. Unless
provided otherwise in this Declaration and except as required
under the 1940 Act, any action of the Trustees may be taken at
a meeting by vote of a majority of the Trustees present (a
quorum being present) or without a meeting by written
consent of a majority of the Trustees.
Any committee of the Trustees, including an executive
committee, if any, may act with or without a meeting. A
quorum for all meetings of any such committee shall be one-
third (331/3%) of the members thereof. Unless provided
otherwise in this Declaration, any action of any such
committee may be taken at a meeting by vote of a majority of
the members present (a quorum being present) or without a
meeting by written consent of all of the members.
With respect to actions of the Trustees and any committee of
the Trustees, Trustees who are Interested Persons in any action
to be taken may be counted for quorum purposes under this
Section and shall be entitled to vote to the extent not
prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting
of the Trustees or any committee thereof by means of a
conference telephone or similar communications equipment
by means of which all persons participating in the meeting can
hear each other; participation in a meeting pursuant to any
such communications system shall constitute presence in
person at such meeting except as otherwise may be provided
by law.
2.6. Trustee Action by Written Consent. Any action which
may be taken by Trustees by vote may be taken without a
meeting if that number of the Trustees, or members of a
committee, as the case may be, required for approval of such
action at a meeting of the Trustees or of such committee
consent to the action in writing and the written consents are
filed with the records of the meetings of Trustees. Such
consent shall be treated for all purposes as a vote taken at a
meeting of Trustees.
2.7. Officers. The Trustees shall elect one or more Presidents,
Chief Executive Officers, a Secretary, a Treasurer, a Chief
Legal Officer, a General Counsel, a Chief Financial Officer
and a Chief Compliance Officer and may also elect such other
officers or assistant officers as may be elected or authorized
by the Trustees. Officers shall serve at the pleasure of the
Trustees or until their successors are elected. The Trustees
may elect or appoint or may authorize the Chairman, if any, or
President to appoint such other officers or agents with such
powers as the Trustees may deem to be advisable. The
President, Secretary and Treasurer may, but need not, be a
Trustee. All officers shall owe to the Trust and its
Shareholders the same fiduciary duties (and only such
fiduciary duties) as owed by officers of corporations to such
corporations and their stockholders under the Delaware
General Corporation Law; provided, however, such fiduciary
duties shall not be deemed to control to the extent that the
express terms of the Delaware Statutory Trust Act, this
Declaration or the Bylaws conflict with or are inconsistent
with such fiduciary duties in which case the express terms of
the Delaware Statutory Trust Act, this Declaration or the
Bylaws shall control.
2.8. Chairman. The Trustees may designate a Chairman and a
Vice Chairman of the Board of Trustees, who shall have such
powers and duties as determined by the Board of Trustees
from time to time.
ARTICLE III
POWERS AND DUTIES OF TRUSTEES
3.1. General. The Trustees shall manage or direct the
management of the Trust Property and the business of the
Trust with such powers of delegation as may be permitted by
this Declaration. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties (and only such
fiduciary duties) as owed by directors of corporations to such
corporations and their stockholders under the Delaware
General Corporation Law; provided, however, such fiduciary
duties shall not be deemed to control to the extent that the
express terms of the Delaware Statutory Trust Act, this
Declaration or the Bylaws conflict with or are inconsistent
with such fiduciary duties in which case the express terms of
the Delaware Statutory Trust Act, this Declaration or the
Bylaws shall control. The Trustees may perform such acts as
in their sole discretion are proper for conducting the business
of the Trust. The enumeration of any specific power herein
shall not be construed as limiting the aforesaid power. Such
powers of the Trustees may be exercised without order of or
resort to any court.
3.2. Investments. The Trustees shall have power, subject to the
Fundamental Policies in effect from time to time with respect
to the Trust, to:
(a) manage, conduct, operate and carry on the
business of an investment company; and
(b) subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer,
exchange, distribute or otherwise deal in or dispose of any and
all sorts of property, tangible or intangible, including but not
limited to securities of any type whatsoever, whether equity or
non-equity, of any issuer, evidences of indebtedness of any
Person and any other rights, interests, instruments or property
of any sort and to exercise any and all rights, powers and
privileges of ownership or interest in respect of any and all
such investments of every kind and description, including,
without limitation, the right to consent and otherwise act with
respect thereto, with power to designate one or more Persons
to exercise any of said rights, powers and privileges in respect
of any of said investments. The Trustees shall not be limited
by any law limiting the investments which may be made by
fiduciaries.
3.3. Issuance and Repurchase of Shares. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire,
cancel, acquire, hold, resell, reissue, dispose of, transfer, and
otherwise deal in, Shares, including Shares in fractional
denominations, and to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares
any funds or property whether capital or surplus or otherwise.
Subject to the further provisions of this Article III, any
restriction set forth in the Bylaws and any applicable
requirements of the 1940 Act or any applicable exemptive
relief issued by the SEC, the Trustees shall have full power
and authority, in their sole discretion, and without obtaining
any authorization or vote of the Shareholders of any class of
Shares of the Trust (each, a "Class") to: (i) divide the
beneficial interest in each Class into Shares as the Trustees
shall determine; (ii) establish, designate, redesignate, classify,
reclassify and change in any manner any Class and fix such
preferences, voting powers, rights, duties and privileges and
business purpose of each Class as the Trustees may from time
to time determine, which preferences, voting powers, rights,
duties and privileges may be different from any existing Class;
provided, however, that the Trustees may not reclassify or
change outstanding Shares in a manner materially adverse to
Shareholders of such Shares, without obtaining the
authorization or vote of the Class of Shareholders that would
be materially adversely affected; (iii) divide or combine the
Shares of any Class into a greater or lesser number without
thereby materially changing the proportionate beneficial
interest of the Shares of such Class in the assets held with
respect to that Class; (iv) change the name of any Class;
(v) dissolve and terminate any one or more Classes; and
(vi) take such other action with respect to the Classes as the
Trustees may deem desirable.
3.4. Borrow Money or Utilize Leverage. Subject to the
Fundamental Policies in effect from time to time with respect
to the Trust, the Trustees shall have the power to borrow
money or otherwise obtain credit or utilize leverage to the
maximum extent permitted by law or regulation as such may
be needed from time to time and to secure the same by
mortgaging, pledging or otherwise subjecting as security the
assets of the Trust, including the lending of portfolio
securities, and to endorse, guarantee, or undertake the
performance of any obligation, contract or engagement of any
other Person, firm, association or corporation.
3.5. Delegation; Committees. The Trustees shall have the
power, consistent with their continuing exclusive authority
over the management of the Trust and the Trust Property, to
delegate from time to time to such of their number or to
officers, employees or agents of the Trust the doing of such
things, including any matters set forth in this Declaration, and
the execution of such instruments either in the name of the
Trust or the names of the Trustees or otherwise as the Trustees
may deem expedient. The Trustees may designate one or more
committees which shall have all or such lesser portion of the
authority of the entire Board of Trustees as the Trustees shall
determine from time to time except to the extent action by the
entire Board of Trustees or particular Trustees is required by
the 1940 Act.
3.6. Collection and Payment. The Trustees shall have power to
collect all property due to the Trust; to pay all claims,
including taxes, against the Trust Property or the Trust, the
Trustees or any officer, employee or agent of the Trust; to
prosecute, defend, compromise or abandon any claims relating
to the Trust Property or the Trust, or the Trustees or any
officer, employee or agent of the Trust; to foreclose any
security interest securing any obligations, by virtue of which
any property is owed to the Trust; and to enter into releases,
agreements and other instruments.
3.7. Expenses. The Trustees shall have power to incur and pay
out of the assets or income of the Trust any expenses which in
the opinion of the Trustees are necessary or incidental to carry
out any of the purposes of this Declaration, and the business of
the Trust, and to pay reasonable compensation from the funds
of the Trust to themselves as Trustees. The Trustees shall fix
the compensation of all officers, employees and Trustees. The
Trustees may pay themselves such compensation for special
services, including legal, underwriting, syndicating and
brokerage services, as they in good faith may deem reasonable
and reimbursement for expenses reasonably incurred by
themselves on behalf of the Trust.
3.8. Bylaws. The Trustees shall have the exclusive authority to
adopt and from time to time amend or repeal Bylaws for the
conduct of the business of the Trust.
3.9. Miscellaneous Powers. The Trustees shall have the power
to: (a) employ or contract with such Persons as the Trustees
may deem desirable for the transaction of the business of the
Trust; (b) enter into joint ventures, partnerships and any other
combinations or associations; (c) purchase, and pay for out of
Trust Property, insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisors,
distributors, selected dealers or independent contractors of the
Trust against all claims arising by reason of holding any such
position or by reason of any action taken or omitted by any
such Person in such capacity, whether or not constituting
negligence, or whether or not the Trust would have the power
to indemnify such Person against such liability; (d) establish
pension, profit-sharing, share purchase, and other retirement,
incentive and benefit plans for any Trustees, officers,
employees and agents of the Trust; (e) make donations,
irrespective of benefit to the Trust, for charitable, religious,
educational, scientific, civic or similar purposes; (f) to the
extent permitted by law, indemnify any Person with whom the
Trust has dealings, including without limitation any advisor,
administrator, manager, transfer agent, custodian, distributor
or selected dealer, or any other Person as the Trustees may see
fit to such extent as the Trustees shall determine; (g) guarantee
indebtedness or contractual obligations of others;
(h) determine and change the fiscal year of the Trust and the
method in which its accounts shall be kept; and (i) adopt a seal
for the Trust, even though the absence of such seal shall not
impair the validity of any instrument executed on behalf of the
Trust.
3.10. Further Powers. The Trustees shall have the power to
conduct the business of the Trust and carry on its operations in
any and all of its branches and maintain offices both within
and without the State of Delaware, in any and all states of the
United States of America, in the District of Columbia, and in
any and all commonwealths, territories, dependencies,
colonies, possessions, agencies or instrumentalities of the
United States of America and of foreign governments, and to
do all such other things and execute all such instruments as
they deem necessary, proper or desirable in order to promote
the interests of the Trust although such things are not herein
specifically mentioned. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of
power to the Trustees. The Trustees will not be required to
obtain any court order to deal with the Trust Property.
ARTICLE IV
ADVISORY, MANAGEMENT AND DISTRIBUTION
ARRANGEMENTS
4.1. Advisory and Management Arrangements. Subject to the
requirements of applicable law as in effect from time to time,
the Trustees may in their discretion from time to time enter
into advisory, administration or management contracts
(including, in each case, one or more sub-advisory, sub-
administration or sub-management contracts) whereby the
other party to any such contract shall undertake to furnish such
advisory, administrative and management services with
respect to the Trust as the Trustees shall from time to time
consider desirable and all upon such terms and conditions as
the Trustees may in their discretion determine.
Notwithstanding any provisions of this Declaration, the
Trustees may authorize any advisor, administrator or manager
(subject to such general or specific instructions as the Trustees
may from time to time adopt) to exercise any of the powers of
the Trustees, including to effect investment transactions with
respect to the assets on behalf of the Trust to the full extent of
the power of the Trustees to effect such transactions or may
authorize any officer, employee or Trustee to effect such
transactions pursuant to recommendations of any such advisor,
administrator or manager (and all without further action by the
Trustees). Any such investment transaction shall be deemed to
have been authorized by all of the Trustees.
4.2. Distribution Arrangements. Subject to compliance with
the 1940 Act, the Trustees may retain underwriters and/or
selling agents to sell Shares and other securities of the Trust.
The Trustees may in their discretion from time to time enter
into one or more contracts, providing for the sale of securities
of the Trust, whereby the Trust may either agree to sell such
securities to the other party to the contract or appoint such
other party its sales agent for such securities. In either case,
the contract shall be on such terms and conditions as the
Trustees may in their discretion determine not inconsistent
with the provisions of this Article IV or the Bylaws; and such
contract may also provide for the repurchase or sale of
securities of the Trust by such other party as principal or as
agent of the Trust and may provide that such other party may
enter into selected dealer agreements with registered securities
dealers and brokers and servicing and similar agreements with
Persons who are not registered securities dealers to further the
purposes of the distribution or repurchase of the securities of
the Trust.
4.3. Parties to Contract. Any contract of the character
described in Sections 4.1 and 4.2 of this Article IV or in
Article VIII hereof may be entered into with any Person,
although one or more of the Trustees, officers or employees of
the Trust may be an officer, director, trustee, shareholder, or
member of such other party to the contract, and no such
contract shall be invalidated or rendered voidable by reason of
the existence of any such relationship, nor shall any Person
holding such relationship be liable merely by reason of such
relationship for any loss or expense to the Trust under or by
reason of said contract or accountable for any profit realized
directly or indirectly therefrom, provided that the contract
when entered into was reasonable and fair and not inconsistent
with the provisions of this Article IV or the Bylaws. The same
Person may be the other party to contracts entered into
pursuant to Sections 4.1 and 4.2 above or Article VIII, and any
individual may be financially interested or otherwise affiliated
with Persons who are parties to any or all of the contracts
mentioned in this Section 4.3.
ARTICLE V
LIMITATIONS OF LIABILITY AND INDEMNIFICATION
5.1. No Personal Liability of Shareholders, Trustees, etc. No
Shareholder of the Trust shall be subject in such capacity to
any personal liability whatsoever to any Person in connection
with Trust Property or the acts, obligations or affairs of the
Trust. Shareholders shall have the same limitation of personal
liability as is extended to stockholders of a private corporation
for profit incorporated under the Delaware General
Corporation Law. No Trustee or officer of the Trust shall be
subject in such capacity to any personal liability whatsoever to
any Person, save only liability to the Trust or its Shareholders
arising from bad faith, willful misfeasance, gross negligence
or reckless disregard for his duty to such Person; and, subject
to the foregoing exception, all such Persons shall look solely
to the Trust Property for satisfaction of claims of any nature
arising in connection with the affairs of the Trust. If any
Shareholder, Trustee or officer, as such, of the Trust, is made a
party to any suit or proceeding to enforce any such liability,
subject to the foregoing exception, he shall not, on account
thereof, be held to any personal liability. Any repeal or
modification of this Section 5.1 shall not adversely affect any
right or protection of a Trustee or officer of the Trust existing
at the time of such repeal or modification with respect to acts
or omissions occurring prior to such repeal or modification.
5.2. Mandatory Indemnification.
(a) To the fullest extent permitted by law but subject
to the limitations expressly provided in this Declaration, the
Trust hereby agrees to indemnify and hold harmless each
person who at any time serves as a Trustee or officer of the
Trust (each such person being an "indemnitee") against any
and all, losses, claims, damages, liabilities, joint or several,
expenses (including legal fees and expenses), judgments,
fines, penalties, interest, settlements or other amounts arising
from any and all threatened, pending or completed, claims,
demands, actions, suits or proceedings, whether civil,
criminal, administrative or investigative, and whether formal
or informal and including appeals, in which any indemnitee
may be or may have been involved as a party or otherwise or
with which he may be or may have been threatened, while
acting in any capacity set forth in this Article V by reason of
his having acted in any such capacity, except however, that no
indemnitee shall be indemnified hereunder against any
liability to any person or any expense of such indemnitee
arising by reason of (i) willful misfeasance, (ii) bad faith,
(iii) gross negligence, or (iv) reckless disregard of the duties
involved in the conduct of his position. Notwithstanding the
foregoing, with respect to any claim, demand, action, suit or
other proceeding (or part thereof) commenced by any
indemnitee, indemnification shall be mandatory only if the
commencement of such claim, demand, action, suit or other
proceeding (or part thereof) by such indemnitee was
authorized by a majority of the Trustees in their sole discretion
or (2) was instituted by the indemnitee to enforce his or her
rights to indemnification hereunder in a case in which the
indemnitee is found to be entitled to such indemnification. The
rights to indemnification set forth in this Declaration shall
continue as to a person who has ceased to be a Trustee or
officer of the Trust and shall inure to the benefit of his or her
heirs, executors and personal and legal representatives. No
amendment or restatement of this Declaration or repeal of any
of its provisions shall limit or eliminate any of the benefits
provided to any person who at any time is or was a Trustee or
officer of the Trust or otherwise entitled to indemnification
hereunder in respect of any act or omission that occurred prior
to such amendment, restatement or repeal.
(b) Notwithstanding the foregoing, no
indemnification shall be made hereunder unless there has been
a determination (i) by a final decision on the merits by a court
or other body of competent jurisdiction before whom the issue
of entitlement to indemnification hereunder was brought that
such indemnitee is entitled to indemnification hereunder or,
(ii) in the absence of such a decision, by (1) a majority vote of
a quorum of those Trustees who are neither Interested Persons
of the Trust nor parties to the proceeding ("Disinterested Non-
Party Trustees"), that the indemnitee is entitled to
indemnification hereunder, or (2) if such quorum is not
obtainable or even if obtainable, if such majority so directs,
independent legal counsel in a written opinion concludes that
the indemnitee should be entitled to indemnification
hereunder. All determinations to make advance payments in
connection with the expense of defending any proceeding
shall be authorized and made in accordance with the
immediately succeeding paragraph (c) below.
(c) To the fullest extent permitted by law, and
without requiring a preliminary determination of the ultimate
entitlement to indemnification, the Trust shall make advance
payments (which shall be unsecured and interest free) in
connection with expenses (including legal fees and expenses)
incurred by any indemnitee in appearing at, participating in or
defending any claim, demand, action, suit or proceeding with
respect to which indemnification might be sought hereunder if
the Trust receives a written undertaking by the indemnitee to
repay the Trust such amounts if it ultimately shall be
determined that the indemnitee is not entitled to
indemnification as authorized by this Section 5.2. The Trust
shall have no obligation to advance any amounts in connection
with any claim, demand, action, suit or other proceeding (or
part thereof) commenced by an indemnitee unless such
commencement was (1) authorized by a majority of the
Trustees in their sole discretion or (2) instituted by the
indemnitee to enforce his or her rights to indemnification
hereunder.
(d) The rights accruing to any indemnitee under these
provisions shall not exclude or restrict any other right
(including any right of indemnification or advancement)
which any indemnitee or any other person may have or
hereafter acquire under this Declaration, the Bylaws of the
Trust, any statute, agreement, or vote of Shareholders or
Trustees who are not Interested Persons or any other right to
which he or she may be lawfully entitled.
(e) Subject to any limitations provided by the 1940
Act and this Declaration, the Trust shall have the power and
authority to indemnify and provide for the advance payment of
expenses to employees, agents and other Persons providing
services to the Trust or serving in any capacity at the request
of the Trust or provide for the advance payment of expenses
for such Persons, provided that such indemnification has been
approved by a majority of the Trustees.
5.3. No Bond Required of Trustees. No Trustee shall, as such,
be obligated to give any bond or other security for the
performance of any of his duties hereunder.
5.4. No Duty of Investigation; No Notice in Trust Instruments,
etc. No purchaser, lender, transfer agent or other Person
dealing with the Trustees or with any officer, employee or
agent of the Trust shall be bound to make any inquiry
concerning the validity of any transaction purporting to be
made by the Trustees or by said officer, employee or agent or
be liable for the application of money or property paid, loaned,
or delivered to or on the order of the Trustees or of said
officer, employee or agent. Every obligation, contract,
undertaking, instrument, certificate, Share, other security of
the Trust, and every other act or thing whatsoever executed in
connection with the Trust shall be conclusively taken to have
been executed or done by the executors thereof only in their
capacity as Trustees under this Declaration or in their capacity
as officers, employees or agents of the Trust. The Trustees
may maintain insurance for the protection of the Trust
Property, Shareholders, Trustees, officers, employees and
agents in such amount as the Trustees shall deem adequate to
cover possible tort liability and such other insurance as the
Trustees in their sole judgment shall deem advisable or as is
required by the 1940 Act.
5.5. Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust shall, in the performance of its duties,
be fully and completely justified and protected with regard to
any act or any failure to act resulting from reliance in good
faith upon the books of account or other records of the Trust,
upon an opinion of counsel, or upon reports made to the Trust
by any of the Trust's officers or employees or by any advisor,
administrator, manager, distributor, selected dealer,
accountant, appraiser or other expert or consultant selected
with reasonable care by the Trustees, officers or employees of
the Trust, regardless of whether such counsel or expert may
also be a Trustee.
ARTICLE VI
SHARES OF BENEFICIAL INTEREST
6.1. Beneficial Interest. The interest of the beneficiaries shall
be divided into an unlimited number of transferable shares of
beneficial par value $0.001 per share. All Shares issued in
accordance with the terms hereof, including, without
limitation, Shares issued in connection with a dividend or
distribution in Shares or a split of Shares, shall be fully paid
and nonassessable when the consideration determined by the
Trustees (if any) therefor shall have been received by the
Trust.
6.2. Other Securities. The Trustees may, subject to the
Fundamental Policies and the requirements of the 1940 Act,
authorize and cause the Trust to issue such other securities of
the Trust as they determine to be necessary, desirable or
appropriate, having such terms, rights, preferences, privileges,
limitations and restrictions as the Trustees see fit, including
preferred shares, debt securities or other senior securities. The
Trustees are also authorized to take such actions and retain
such Persons as they see fit to offer and sell such securities. To
the extent that the Trustees authorize and issue preferred
shares of any series, they are hereby authorized and
empowered to amend or supplement this Declaration as they
deem necessary or appropriate, including to comply with the
requirements of the 1940 Act or requirements imposed by the
rating agencies or other Persons, all without the approval of
Shareholders. In addition, any such supplement or amendment
may set forth the rights, powers, preferences and privileges of
such preferred shares and any such supplement or amendment
shall operate either as additions to or modifications of the
rights, powers, preferences and privileges of any such
preferred shares under this Declaration. To the extent the
provisions set forth in such supplement or amendment conflict
with the provisions of this Declaration with respect to any
such rights, powers and privileges of the preferred shares, such
amendment or supplement shall control. Except as
contemplated by the immediately preceding sentence, this
Declaration shall control as to the Trust generally and the
rights, powers, preferences and privileges of the other
Shareholders of the Trust. The Trustees are also authorized to
take such actions and retain such persons as they see fit to
offer and sell such securities.
6.3. Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically
set forth. The ownership of the Trust Property of every
description and the right to conduct any business hereinbefore
described are vested exclusively in the Trustees on behalf of
the Trust, and the Shareholders shall have no interest therein
other than the beneficial interest conferred by their Shares, and
they shall have no right to call for any partition or division of
any property, profits, rights or interests of the Trust nor can
they be called upon to share or assume any losses of the Trust
or, subject to the right of the Trustees to charge certain
expenses directly to Shareholders, suffer an assessment of any
kind by virtue of their ownership of Shares. The Shares shall
not entitle the holder to preference, preemptive, appraisal,
redemption or conversion rights.
6.4. Exchange Privilege. Subject to the provisions of the 1940
Act and provisions of this Declaration, the Trustees shall have
the power and authority to provide that the Shareholders of
any Class shall have the right to exchange such Shares for
Shares of one or more other Classes.
6.5. Trust Only. It is the intention of the Trustees to create
only the relationship of Trustee and beneficiary between the
Trustees and each Shareholder from time to time. It is not the
intention of the Trustees to create a general partnership,
limited partnership, joint stock association, corporation,
bailment or any form of legal relationship other than a trust.
Nothing in this Declaration shall be construed to make the
Shareholders, either by themselves or with the Trustees,
partners or members of a joint stock association.
6.6. Issuance of Shares. The Trustees, in their discretion, may
from time to time without vote of the Shareholders issue
Shares in addition to the then issued and outstanding Shares
and Shares held in the treasury, to such party or parties and for
such amount and type of consideration, including cash or
property, at such time or times, and on such terms as the
Trustees may determine, and may in such manner acquire
other assets (including the acquisition of assets subject to, and
in connection with the assumption of, liabilities) and
businesses. The Trustees may from time to time, without a
vote of the Shareholders, divide, combine or, prior to the
issuance of Shares, reclassify the Shares into a greater or
lesser number without thereby changing the proportionate
beneficial interest in such Shares. Issuances and redemptions
of Shares may be made in whole Shares and/or 1/1,000ths of a
Share or multiples thereof as the Trustees may determine.
6.7. Register of Shares. A register shall be kept at the offices
of the Trust or any transfer agent duly appointed by the
Trustees under the direction of the Trustees which shall
contain the names and addresses of the Shareholders and the
number of Shares held by them respectively and a record of all
transfers thereof. Each such register shall be conclusive as to
who are the holders of the Shares and who shall be entitled to
receive dividends or distributions or otherwise to exercise or
enjoy the rights of Shareholders. No Shareholder shall be
entitled to receive payment of any dividend or distribution, nor
to have notice given to him as herein provided, until he has
given his address to a transfer agent or such other officer or
agent of the Trustees as shall keep the register for entry
thereon. It is not contemplated that certificates will be issued
for the Shares; however, the Trustees, in their discretion, may
authorize the issuance of share certificates and promulgate
appropriate fees therefor and rules and regulations as to their
use.
6.8. Transfer Agent and Registrar. The Trustees shall have
power to employ a transfer agent or transfer agents, and a
registrar or registrars, with respect to the Shares. The transfer
agent or transfer agents may keep the applicable register and
record therein, the original issues and transfers, if any, of the
said Shares. Any such transfer agents and/or registrars shall
perform the duties usually performed by transfer agents and
registrars of certificates of stock in a corporation, as modified
by the Trustees.
6.9. Transfer of Shares. Except as otherwise provided by the
Trustees, Shares shall be transferable on the records of the
Trust only by the record holder thereof or by its agent thereto
duly authorized in writing, upon delivery to the Trustees or a
transfer agent of the Trust of a duly executed instrument of
transfer, together with such evidence of the genuineness of
each such execution and authorization and of other matters
(including compliance with any securities laws and contractual
restrictions) as may reasonably be required. Upon such
delivery the transfer shall be recorded on the applicable
register of the Trust. Until such record is made, the
Shareholder of record shall be deemed to be the holder of such
Shares for all purposes hereof and neither the Trustees nor any
transfer agent or registrar nor any officer, employee or agent
of the Trust shall be affected by any notice of the proposed
transfer. Each Shareholder will indemnify and hold harmless
the Trust, the Trustees and any Affiliated Person of the Trust
or the Trustees against all losses, claims, damages, liabilities,
costs and expenses (including legal or other expenses incurred
in investigating or defending against any losses, claims,
damages, liabilities, costs and expenses or any judgments,
fines and amounts paid in settlement), joint or several, to
which these Persons may become subject by reason of or
arising from (1) any transfer made by the Shareholder in
violation of this Section 6.9 and (2) any misrepresentation by
the transferring Shareholder or substituted Shareholder in
connection with the transfer.
Any person becoming entitled to any Shares in consequence of
the death, bankruptcy, or incompetence of any Shareholder, or
otherwise by operation of law, shall be recorded on the
applicable register of Shares as the holder of such Shares upon
production of the proper evidence thereof to the Trustees or a
transfer agent of the Trust, but until such record is made, the
Shareholder of record shall be deemed to be the holder of such
for all purposes hereof, and neither the Trustees nor any
transfer agent or registrar nor any officer or agent of the Trust
shall be affected by any notice of such death, bankruptcy or
incompetence, or other operation of law.
6.10. Notices. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications
shall be deemed duly served or given if mailed, postage
prepaid, addressed to any Shareholder of record at his last
known address as recorded on the applicable register of the
Trust.
6.11. Derivative Actions.
(a) No person, other than a Trustee, who is not a
Shareholder shall be entitled to bring any derivative action,
suit or other proceeding on behalf of the Trust. No
Shareholder may maintain a derivative action on behalf of the
Trust unless holders of at least ten percent (10%) of the
outstanding Shares join in the bringing of such action.
(b) In addition to the requirements set forth in
Section 3816 of the Delaware Statutory Trust Act, a
Shareholder may bring a derivative action on behalf of the
Trust only if the following conditions are met: (i) the
Shareholder or Shareholders must make a pre-suit demand
upon the Trustees to bring the subject action unless an effort to
cause the Trustees to bring such an action is not likely to
succeed; and a demand on the Trustees shall only be deemed
not likely to succeed and therefore excused if, and only if, a
majority of the Trustees, or a majority of any committee
established to consider the merits of such action, is composed
of Trustees who are not "independent trustees" (as that term is
defined in the Delaware Statutory Trust Act); and (ii) unless a
demand is not required under clause (i) of this paragraph, the
Trustees must be afforded a reasonable amount of time to
consider such Shareholder request and to investigate the basis
of such claim; and the Trustees shall be entitled to retain
counsel or other advisors in considering the merits of the
request and may require an undertaking by the Shareholders
making such request to reimburse the Trust for the expense of
any such advisors in the event that the Trustees determine not
to bring such action. For purposes of this Section 6.11, the
Trustees may designate a committee of one or more Trustees
to consider a Shareholder demand.
ARTICLE VII
DETERMINATION OF NET ASSET VALUE
7.1. Net Asset Value. The net asset value of each outstanding
Share shall be determined at such time or times on such days
as the Trustees may determine, in accordance with the 1940
Act. The method of determination of net asset value shall be
determined by the Trustees and shall be as set forth in the
Registration Statement or as may otherwise be determined by
the Trustees. The power and duty to make the net asset value
calculations may be delegated by the Trustees and shall be as
generally set forth in the Registration Statement or as may
otherwise be determined by the Trustees.
7.2. Distributions to Shareholders.
(a) The Trustees may from time to time distribute
ratably among the Shareholders of any Class, or any series of
any such Class, in accordance with the number of outstanding
full and fractional Shares of such Class or any series of such
Class, such proportion of the net profits, surplus (including
paid-in surplus), capital, or assets held by the Trustees as they
may deem proper or as may otherwise be determined in
accordance with this Declaration. Any such distribution may
be made in cash or property (including without limitation any
type of obligations of the Trust or any assets thereof) or Shares
of any Class or series or any combination thereof, and the
Trustees may distribute ratably among the Shareholders of any
Class of shares or series of any such Class, in accordance with
the number of outstanding full and fractional Shares of such
Class or any series of such Class, additional Shares of any
Class or series in such manner, at such times, and on such
terms as the Trustees may deem proper or as may otherwise be
determined in accordance with this Declaration.
(b) Distributions pursuant to this Section 7.2 may be
among the Shareholders of record of the applicable Class or
series of Shares at the time of declaring a distribution or
among the Shareholders of record at such later date as the
Trustees shall determine and specify.
(c) The Trustees may always retain from the net
profits such amount as they may deem necessary to pay the
debts or expenses of the Trust or to meet obligations of the
Trust, or as they otherwise may deem desirable to use in the
conduct of its affairs or to retain for future requirements or
extensions of the business.
(d) Inasmuch as the computation of net income and
gains for Federal income tax purposes may vary from the
computation thereof on the books, the above provisions shall
be interpreted to give the Trustees the power in their discretion
to distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional amounts
sufficient to enable the Trust to avoid or reduce liability for
taxes.
7.3. Power to Modify Foregoing Procedures. Notwithstanding
any of the foregoing provisions of this Article VII, the
Trustees may prescribe, in their absolute discretion except as
may be required by the 1940 Act, such other bases and times
for determining the net asset value of the Trust's Shares or net
income, or the declaration and payment of dividends and
distributions as they may deem necessary or desirable for any
reason, including to enable the Trust to comply with any
provision of the Code, the 1940 Act, any securities exchange
or association registered under the Securities Exchange Act of
1934, or any order of exemption issued by the Commission,
all as in effect now or hereafter amended or modified.
ARTICLE VIII
CUSTODIANS
8.1. Appointment and Duties. The Trustees shall at all times
employ a custodian or custodians, meeting the qualifications
for custodians for portfolio securities of investment companies
contained in the 1940 Act, as custodian with respect to the
assets of the Trust. Any custodian shall have authority as agent
of the Trust as determined by the custodian agreement or
agreements, but subject to such restrictions, limitations and
other requirements, if any, as may be contained in the Bylaws
of the Trust and the 1940 Act, including without limitation
authority:
(1) to hold the securities owned by the Trust and
deliver the same upon written order;
(2) to receive any receipt for any moneys due to the
Trust and deposit the same in its own banking department (if a
bank) or elsewhere as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books
and accounts of the Trust and furnish clerical and accounting
services; and
(5) if authorized to do so by the Trustees, to compute
the net income or net asset value of the Trust; all upon such
basis of compensation as may be agreed upon between the
Trustees and the custodian.
The Trustees may also authorize each custodian to employ one
or more sub-custodians from time to time to perform such of
the acts and services of the custodian and upon such terms and
conditions, as may be agreed upon between the custodian and
such sub-custodian and approved by the Trustees, provided
that in every case such sub-custodian shall meet the
qualifications for custodians contained in the 1940 Act.
8.2. Central Certificate System. Subject to such rules,
regulations and orders as the Commission may adopt, the
Trustees may direct the custodian to deposit all or any part of
the securities owned by the Trust in a system for the central
handling of securities established by a national securities
exchange or a national securities association registered with
the Commission under the Securities Exchange Act of 1934,
or such other Person as may be permitted by the Commission,
or otherwise in accordance with the 1940 Act, pursuant to
which system all securities of any particular Class of any
issuer deposited within the system are treated as fungible and
may be transferred or pledged by bookkeeping entry without
physical delivery of such securities, provided that all such
deposits shall be subject to withdrawal only upon the order of
the Trust.
ARTICLE IX
REPURCHASES OF SHARES
9.1. Repurchase of Shares. Except as otherwise provided by
the Trustees, no Shareholder or other Person holding Shares
will have the right to withdraw or tender Shares to the Trust
for repurchase. The Trustees may, from time to time, in their
complete and exclusive discretion and on terms and conditions
as they may determine, cause the Trust to repurchase Shares in
accordance with written tenders. In determining whether to
cause the Trust to repurchase Shares, pursuant to written
tenders, the Trustees may consider such factors as the Trustees
deem appropriate at such time. Additionally, the Trust shall
offer to repurchase Shares from time to time as may be
required by applicable law and/or specified in the Registration
Statement.
9.2. Disclosure of Holding. The holders of Shares or other
securities of the Trust shall upon demand disclose to the
Trustees in writing such information with respect to direct and
indirect ownership of Shares or other securities of the Trust as
the Trustees deem necessary to comply with the provisions of
the Code, the 1940 Act or other applicable laws or regulations,
or to comply with the requirements of any other taxing or
regulatory authority.
ARTICLE X
SHAREHOLDERS
10.1. Meetings of Shareholders. The Trust will not hold
annual Shareholder meetings unless required by the 1940 Act,
the provisions of this Declaration, the Bylaws or any other
applicable law, rule or regulation. A special meeting of
Shareholders may be called at any time by a majority of the
Trustees or the President and shall be called by any Trustee for
any proper purpose upon written request of Shareholders of
the Trust holding in the aggregate at least a majority of the
outstanding Shares, such request specifying the purpose or
purposes for which such meeting is to be called. Any
shareholder meeting, including a special meeting, shall be held
within or without the State of Delaware on such day and at
such time as the Trustees shall designate. 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 Bylaws. 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 Bylaws or
in this Declaration. In the event of a Shareholder meeting
requested by Shareholders of the Trust, the Secretary shall
inform the requesting shareholders of the reasonably estimated
cost of preparing and mailing or delivering the notice of the
meeting (including the Trust's proxy materials). The Secretary
shall not be required to call a special meeting upon
Shareholder request, and such meeting shall not be held,
unless the Secretary receives payment of such reasonably
estimated cost prior to the preparation and mailing or delivery
of such notice of the meeting.
10.2. Voting. Shareholders shall have no power to vote on any
matter except matters on which a vote of Shareholders is
required by the 1940 Act, this Declaration or resolution of the
Trustees. This Declaration expressly provides that no matter
for which voting, consent or other approval is required by the
Delaware Statutory Trust Act in the absence of the contrary
provision in the Declaration shall require any vote. Except as
otherwise provided herein, any matter required to be submitted
to Shareholders and affecting one or more Classes or series of
shares shall require approval by the required vote of all the
affected Classes and series of shares voting together as a
single Class; provided, however, that as to any matter with
respect to which a separate vote of any Class or series of
shares is required by the 1940 Act, such requirement as to a
separate vote by that Class or series of shares shall apply in
addition to a vote of all the affected Classes and series voting
together as a single Class. Shareholders of a particular Class or
series of shares shall not be entitled to vote on any matter that
affects only one or more other Classes or series of shares.
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 or removal of Trustees.
10.3. Notice of Meeting and Record Date. 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 Bylaws. 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 Bylaws or
in this Declaration. For purposes of determining the
Shareholders who are entitled to notice of and to vote at any
meeting the Trustees may, without closing the transfer books,
fix a date not more than 90 days prior to the date of such
meeting of Shareholders as a record date for the determination
of the Persons to be treated as Shareholders of record for such
purposes. Any meeting of Shareholders, whether or not a
quorum is present, may be adjourned for any lawful purpose
by the Chairman, the Trustees (or their designees) or a
majority of the votes properly cast upon the question of
adjourning a meeting. Any adjourned meeting may be held as
adjourned one or more times without further notice not later
than 120 days after the record date. For the purposes of
determining the Shareholders who are entitled to notice of and
to vote at any meeting the Trustees may, without closing the
transfer books, fix a date not more than 90 nor less than 10
days prior to the date of such meeting of Shareholders as a
record date for the determination of the Persons to be treated
as Shareholders of record for such purposes.
10.4. Quorum and Required Vote.
(a) Except as otherwise provided from time to time in
the Bylaws, the presence in person or by proxy of Shares
entitled to cast a majority of the votes entitled to be cast shall
constitute a quorum at such meeting of the Shareholders for
purposes of conducting business on such matter. The absence
from any meeting, in person or by proxy, of a quorum of
Shareholders for action upon any given matter shall not
prevent action at such meeting upon any other matter or
matters which may properly come before the meeting, if there
shall be present thereat, in person or by proxy, a quorum of
Shareholders in respect of such other matters.
(b) Subject to any provision of applicable law, this
Declaration or a resolution of the Trustees specifying a greater
or a lesser vote requirement for the transaction of any item of
business at any meeting of Shareholders, the affirmative vote
of a majority of the Shares present in person or represented by
proxy and entitled to vote on the subject matter shall be the act
of the Shareholders with respect to such matter, except that
Trustees shall be elected by the affirmative vote of a plurality
of the Shares voted at such a meeting to the extent
Shareholders are entitled to vote to elect Trustees.
10.5. Proxies, etc. At any meeting of Shareholders, any holder
of Shares entitled to vote thereat may vote by properly
executed proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the
Secretary, or with such other officer or agent of the Trust as
the Secretary may direct, for verification prior to the time at
which such vote shall be taken. Pursuant to a resolution of a
majority of the Trustees, proxies may be solicited in the name
of one or more Trustees or one or more of the officers or
employees of the Trust. No proxy shall be valid after the
expiration of 11 months from the date thereof, unless
otherwise provided in the proxy. Only Shareholders of record
shall be entitled to vote. Each full Share shall be entitled to
one vote and fractional Shares shall be entitled to a vote of
such fraction. When any Share is held jointly by several
persons, any one of them may vote at any meeting in person or
by proxy in respect of such Share, but if more than one of
them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to
any vote to be cast, such vote shall not be received in respect
of such Share. A proxy purporting to be 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. If the holder of
any such Share is a minor or a person of unsound mind, and
subject to guardianship or to the legal control of any other
person as regards the charge or management of such Share, he
may vote by his guardian or such other person appointed or
having such control, and such vote may be given in person or
by proxy.
10.6. Reports. The Trustees shall as long as the Trust
continues operations cause to be prepared at least annually and
more frequently to the extent and in the form required by law,
regulation or any exchange on which Trust Shares are listed a
report of operations containing a balance sheet and statement
of income and undistributed income of the Trust prepared in
conformity with generally accepted accounting principles and
an opinion of an independent public accountant on such
financial statements. Copies of such reports shall be mailed to
all Shareholders of record within the time required by the
1940 Act, and in any event within a reasonable period
preceding the meeting of Shareholders. The Trustees shall, as
long as the Trust continues operations, in addition, furnish to
the Shareholders at least semi-annually to the extent required
by law, interim reports containing an unaudited balance sheet
of the Trust as of the end of such period and an unaudited
statement of income and surplus for the period from the
beginning of the current fiscal year to the end of such period.
10.7. Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is
permitted stockholders of a corporation formed under the
Delaware General Corporation Law.
10.8. Shareholder Action by Written Consent. Any action
which may be taken by Shareholders by vote may be taken
without a meeting upon unanimous written consent of the
Shareholders. Such written consents shall be filed with the
records of the meetings of Shareholders. Such consent shall be
treated for all purposes as a vote taken at a meeting of
Shareholders.
10.9. Delivery by Electronic Transmission or Otherwise.
Notwithstanding any provision in this Declaration to the
contrary, any notice, proxy, vote, consent, report, instrument
or writing of any kind or any signature referenced in, or
contemplated by, this Declaration or the Bylaws may, unless
the Trustees by resolution determine otherwise, be given,
granted or otherwise delivered by electronic transmission
(within the meaning of the Delaware Statutory Trust Act),
including via the internet, or in any other manner permitted by
applicable law.
ARTICLE XI
DURATION; TERMINATION OF TRUST; AMENDMENT;
ETC.
11.1. Duration. Subject to possible termination in accordance
with the provisions of Section 11.2 hereof, the Trust created
hereby shall have perpetual existence.
11.2. Termination.
(a) The Trust may be dissolved only upon approval of
not less than a majority of the Trustees. Upon the dissolution
of the Trust:
(i) The Trust shall carry on no business except
for the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up the
affairs of the Trust and all of the powers of the
Trustees under this Declaration shall continue
until the affairs of the Trust shall have been
wound up, including the power to fulfill or
discharge the contracts of the Trust, collect its
assets, sell, convey, assign, exchange, merge
where the Trust is not the survivor, transfer or
otherwise dispose of all or any part of the
remaining Trust Property to one or more Persons
at public or private sale for consideration which
may consist in whole or in part in cash, securities
or other property of any kind, discharge or pay
its liabilities, and do all other acts appropriate to
liquidate its business; provided that any sale,
conveyance, assignment, exchange, merger in
which the Trust is not the survivor, transfer or
other disposition of all or substantially all the
Trust Property of the Trust shall require approval
of the principal terms of the transaction and the
nature and amount of the consideration by
Shareholders.
(iii) After paying or adequately providing for the
payment of all claims and obligations of the
Trust in accordance with Section 3808 of the
Delaware Statutory Trust Act, and upon receipt
of such releases, indemnities and refunding
agreements, as they deem necessary for their
protection, the Trustees may distribute the
remaining Trust Property, in cash or in kind or
partly each, among the Shareholders according to
their respective rights.
(b) After the winding up and termination of the Trust
and distribution to the Shareholders as herein provided, a
majority of the Trustees shall execute and lodge among the
records of the Trust an instrument in writing setting forth the
fact of such termination and shall execute and file a certificate
of cancellation with the Secretary of State of the State of
Delaware. Upon termination of the Trust, the Trustees shall
thereupon be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Shareholders shall
thereupon cease.
11.3. Amendment Procedure. Subject to the provisions of the
1940 Act and of the provisions of this Declaration, the
Trustees reserve the right, without any vote of Shareholders,
from time to time to make any amendment to this Declaration,
now or hereafter authorized by law, including any amendment
altering the terms or contract rights, as expressly set forth in
this Declaration, of any outstanding Shares.
11.4. Subsidiaries. Without approval by Shareholders, the
Trustees may cause to be organized or assist in organizing one
or more corporations, trusts, limited liability companies,
partnerships, associations or other organizations to take over
all of the Trust Property or to carry on any business in which
the Trust shall directly or indirectly have any interest, and to
sell, convey and transfer all or a portion of the Trust Property
to any such corporation, trust, limited liability company,
association or organization in exchange for the shares or
securities thereof, or otherwise, and to lend money to,
subscribe for the shares or securities of, and enter into any
contracts with any such corporation, trust, limited liability
company, partnership, association or organization, or any
corporation, partnership, trust, limited liability company,
association or organization in which the Trust holds or is
about to acquire shares or any other interests.
ARTICLE XII
MISCELLANEOUS
12.1. Filing. This Declaration and any amendment or
supplement hereto shall be filed in such places as may be
required or as the Trustees deem appropriate. Each
amendment or supplement shall be accompanied by a
certificate signed and acknowledged by a Trustee or Secretary
of the Trust stating that such action was duly taken in a
manner provided herein and shall, upon insertion in the
Trust's minute book, be conclusive evidence of all
amendments contained therein. A restated Declaration,
containing the original Declaration and all amendments and
supplements theretofore made, may be executed from time to
time by a majority of the Trustees and shall, upon insertion in
the Trust's minute book, be conclusive evidence of all
amendments and supplements contained therein and may
thereafter be referred to in lieu of the original Declaration and
the various amendments and supplements thereto.
12.2. Resident Agent. The Trust shall maintain a resident
agent in the State of Delaware, which agent shall initially be
The Corporation Trust Company. The Trustees may designate
a successor resident agent, provided, however, that such
appointment shall not become effective until written notice
thereof and any required filing is delivered to the office of the
Secretary of the State.
12.3. Governing Law. The trust set forth in this instrument is
made in the State of Delaware, and the Trust and this
Declaration, and the rights and obligations of the Trustees and
Shareholders hereunder, are to be governed by and construed
and administered according to the Delaware Statutory Trust
Act and the laws of said State; provided, however, that there
shall not be applicable to the Trust, the Trustees or this
Declaration (a) the provisions of Sections 3540 and 3561 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 Statutory Trust 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 or 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 Declaration. The Trust
shall be of the type commonly called a "statutory 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
Statutory Trust 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.
12.4. Exclusive Delaware Jurisdiction. Each Trustee, each
officer and each Person legally or beneficially owning a Share
or an interest in a Share (whether through a broker, dealer,
bank, trust company or clearing corporation or an agent of any
of the foregoing or otherwise), to the fullest extent permitted
by law, including Section 3804(e) of the Delaware Statutory
Trust Act, (i) irrevocably agrees that any claims, suits, actions
or proceedings asserting a claim governed by the internal
affairs (or similar) doctrine or arising out of or relating in any
way to the Trust, the Delaware Statutory Trust Act, this
Declaration or the Bylaws (including, without limitation, any
claims, suits, actions or proceedings to interpret, apply or
enforce (A) the provisions of this Declaration or the Bylaws,
or (B) the duties (including fiduciary duties), obligations or
liabilities of the Trust to the Shareholders or the Trustees, or
of officers or the Trustees to the Trust, to the Shareholders or
each other, or (C) the rights or powers of, or restrictions on,
the Trust, the officers, the Trustees or the Shareholders, or
(D) any provision of the Delaware Statutory Trust Act or other
laws of the State of Delaware pertaining to trusts made
applicable to the Trust pursuant to Section 3809 of the
Delaware Statutory Trust Act, or (E) any other instrument,
document, agreement or certificate contemplated by any
provision of the Delaware Statutory Trust Act, the Declaration
or the Bylaws relating in any way to the Trust (regardless, in
each case, of whether such claims, suits, actions or
proceedings (x) sound in contract, tort, fraud or otherwise,
(y) are based on common law, statutory, equitable, legal or
other grounds, or (z) are derivative or direct claims)), shall be
exclusively brought in the Court of Chancery of the State of
Delaware or, if such court does not have subject matter
jurisdiction thereof, any other court in the State of Delaware
with subject matter jurisdiction, (ii) irrevocably submits to the
exclusive jurisdiction of such courts in connection with any
such claim, suit, action or proceeding, (iii) irrevocably agrees
not to, and waives any right to, assert in any such claim, suit,
action or proceeding that (A) it is not personally subject to the
jurisdiction of such courts or any other court to which
proceedings in such courts may be appealed, (B) such claim,
suit, action or proceeding is brought in an inconvenient forum,
or (C) the venue of such claim, suit, action or proceeding is
improper, (iv) consents to process being served in any such
claim, suit, action or proceeding by mailing, certified mail,
return receipt requested, a copy thereof to such party at the
address in effect for notices hereunder, and agrees that such
service shall constitute good and sufficient service of process
and notice thereof; provided, nothing in clause (iv) hereof
shall affect or limit any right to serve process in any other
manner permitted by law, and (v) irrevocably waives any and
all right to trial by jury in any such claim, suit, action or
proceeding.
12.5. Counterparts. This Declaration may be simultaneously
executed in several counterparts, each of which shall be
deemed to be an original, and such counterparts, together,
shall constitute one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.
12.6. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, or of any
recording office in which this Declaration may be recorded,
appears to be a Trustee hereunder, certifying to: (a) the
number or identity of Trustees or Shareholders, (b) the name
of the Trust, (c) the due authorization of the execution of any
instrument or writing, (d) the form of any vote passed at a
meeting of Trustees or Shareholders, (e) the fact that the
number of Trustees or Shareholders present at any meeting or
executing any written instrument satisfies the requirements of
this Declaration, (f) the form of any Bylaws adopted by or the
identity of any officers elected by the Trustees, or (g) the
existence of any fact or facts which in any manner relate to the
affairs of the Trust, shall be conclusive evidence as to the
matters so certified in favor of any person dealing with the
Trustees and their successors.
12.7. Provisions in Conflict with Law or Regulation.
(a) The provisions of this Declaration are severable,
and if the Trustees shall determine, with the advice of counsel,
that any of such provisions is in conflict with the 1940 Act, if
applicable, with the regulated investment company provisions
of the Code (if applicable) or with other applicable laws and
regulations, the conflicting provision shall be deemed never to
have constituted a part of this Declaration; provided, however,
that such determination shall not affect any of the remaining
provisions of this Declaration or render invalid or improper
any action taken or omitted prior to such determination.
(b) If any provision of this Declaration shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision
in any other jurisdiction or any other provision of this
Declaration in any jurisdiction.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above
written.
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