OBERWEIS EMERGING GROWTH FUND
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AGREEMENT AND DECLARATION OF TRUST
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AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts, this 7th
day of July, 1986 by the Trustees hereunder, and by the holders of shares of
beneficial interest to be issued hereunder as hereinafter provided;
W I T N E S S E T H:
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WHEREAS, the Trustees hereunder are desirous of forming a trust for the
purposes of carrying on the business of a management investment company; and
WHEREAS, in furtherance of such purposes, the Trustees are acquiring and
may hereafter acquire assets and properties to hold and manage as trustees of a
Massachusetts voluntary association with transferable shares in accordance with
the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets and properties which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST, to manage and dispose of
the same upon the following terms and conditions for the prorata benefit of the
holders from time to time of shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
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Name and Registered Agent
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Section 1. This Trust shall be known as "Oberweis Emerging Growth Fund" and
the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine. The registered agent for the
Trust in Massachusetts shall be CT Corporation System whose address is 0 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or such other person as the Trustees may from
time to time designate.
Definitions
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Section 2. Whenever used herein, unless otherwise required by the context
or specifically provided:
(a) The "Trust" refers to the Massachusetts voluntary association
established by this Agreement and Declaration of Trust, as amended from time to
time, pursuant to Massachusetts General Laws, Chapter 182.
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(b) "Trustees" refers to the Trustees of the Trust named herein or
elected in accordance with Article IV and then in office.
(c) "Shares" mean the equal proportionate transferable units of
interest into which the beneficial interest in the Trust shall be divided from
time to time, or if more than one series is authorized under or pursuant to
Article III, the equal proportionate transferable units of interest into which
each such series shall be divided from time to time.
(d) "Shareholder" means a record owner of Shares.
(e) The "1940 Act" refers to the Investment Company Act of 1940 (and
any successor statute) and the Rules and Regulations thereunder, all as amended
from time to time.
(f) The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person", "Principal Underwriter", and "vote of a majority of the
outstanding voting securities" shall have the meanings given them in the 1940
Act.
(g) "Declaration of Trust" shall mean this Agreement and Declaration
of Trust as amended or restated from time to time.
(h) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time.
(i) "Net asset value" shall have the meaning set forth in Section 6 of
Article VI hereof.
ARTICLE II
Nature and Purpose
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The Trust is a voluntary association (commonly known as a business trust)
of the type referred to in Chapter 182 of the General Laws of the Commonwealth
of Massachusetts. The Trust is not intended to be, shall not be deemed to be,
and shall not be treated as, a general or a limited partnership, joint venture,
corporation, or joint stock company, nor shall the Trustees or Shareholders or
any of them, for any purpose, be deemed to be, or be treated in any way
whatsoever as though they were, liable or responsible hereunder as partners or
joint venturers. The purpose of the Trust is to engage in, operate and carry on
the business of, an open-end management investment company, and to do any and
all acts or things as are necessary, convenient, appropriate, incidental or
customary in connection therewith.
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ARTICLE III
Shares
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Division of Beneficial Interest
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Section 1. The Shares of the Trust shall be issued in one or more series as
the Trustees may, without Shareholder approval, authorize from time to time.
Each series shall be preferred over all other series in respect of the assets
allocated to that series as hereinafter provided. The beneficial interest in
each series shall at all times be divided into Shares (without par value) of
such series, each of which shall represent an equal proportionate interest in
such series with each other Share of the same series, none having priority or
preference over another Share of the same series. The number of Shares
authorized shall be unlimited, and the Shares so authorized may be represented
in part by fractional Shares. The Trustees may from time to time divide or
combine the Shares of any series into a greater or lesser number without thereby
changing the proportionate beneficial interests in the series. Without limiting
the authority of the Trustees set forth in this Section 1 to establish and
designate any further series, the Trustees hereby establish and designate a
single series of Shares to be known as the "Emerging Growth Portfolio" series.
The establishment and designation of any series of Shares in addition to the
foregoing shall be effective upon the execution by a majority of the then
Trustees of an instrument setting forth such establishment and designation and
the relative rights and preferences of such series. As provided in Article IX,
Section 1 hereof, any series of Shares (whether or not there shall then be
Shares outstanding of said series) may be terminated by the Trustees by written
notice to the Shareholders of such series or by the vote of the Shareholders of
such series entitled to vote more than fifty percent (50%) of the votes entitled
to be cast on the matter. In the event of any such termination, a majority of
the then Trustees shall execute an instrument setting forth the termination of
such series.
Ownership of Shares
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Section 2. The ownership and transfer of Shares shall be recorded on the
books of the Trust or its transfer or similar agent. No certificates certifying
the ownership of Shares shall be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the transfer of Shares and
similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent of the Trust, as the case may be, shall be conclusive
as to who are the Shareholders of each series and as to the number of Shares of
each series held from time to time by each Shareholder.
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Investments in the Trust; Assets of a Series
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Section 3. The Trustees may issue Shares of the Trust to such persons and
on such terms and subject to any requirements of law for such consideration
which may consist of cash, or tangible or intangible property or a combination
thereof, as they may from time to time authorize.
All consideration received by the Trust for the issue or sale of Shares of
a particular series, together with all income, earnings, profits and proceeds
thereof, including any proceeds derived from the sale, exchange or liquidation
thereof, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably belong to such
series of Shares for all purposes, subject only to the rights of creditors, and
shall be so handled upon the books of account of the Trust and are herein
referred to as "assets of" such series.
Right to Refuse Orders
----------------------
Section 4. The Trust, by action of its Trustees, shall have the right to
refuse to accept any subscription for its Shares at any time without any cause
or reason therefor whatsoever. Without limiting the foregoing, the Trust shall
have the right not to accept subscriptions under circumstances or in amounts as
the Trustees, in their sole discretion, consider to be disadvantageous to
existing Shareholders, and the Trust may from time to time set minimum and/or
maximum amounts which may be invested in Shares by a subscriber.
Order in Proper Form
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Section 5. The criteria for determining what constitutes an order in proper
form and the time of receipt of such an order by the trust shall be prescribed
by resolution of the Trustees.
When Shares Become Outstanding
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Section 6. Shares subscribed for and for which an order in proper form has
been received shall be deemed to be outstanding as of the time of acceptance of
the order therefore and the determination of the net price thereof, which price
shall be then deemed to be an asset of the Trust.
Merger or Consolidation
-----------------------
Section 7. In connection with the acquisition of all or substantially all
the assets or stock of another investment company, investment trust, or of a
company classified as a personal holding company under Federal Income Tax laws,
the Trustees may issue or cause to be issued Shares of a series and accept in
payment therefor, in lieu of cash, such assets at their
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market value, or such stock at the market value of the assets held by such
investment company or investment trust, either with or without adjustment for
contingent costs or liabilities.
No Preemptive Rights, Etc.
--------------------------
Section 8. Shareholders shall have no preemptive or other right to receive,
purchase or subscribe for any additional Shares or other securities issued by
the Trust. The Shareholders shall have no appraisal rights with respect to their
Shares, and except as otherwise determined by the Trustees, in their sole
discretion, shall have no exchange or conversion rights with respect to their
Shares.
Status of Shares and Limitation of Personal Liability
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Section 9. Shares shall be deemed to be personal property, giving only
rights provided in this instrument. Every Shareholder, by virtue of having
become a Shareholder, shall be held to have expressly assented and agreed to the
terms of the Declaration of Trust and to have become a party thereto. The death
of a Shareholder during the continuance of the Trust shall not operate to
terminate the same, nor entitle the representative of any deceased Shareholder
to an accounting or to take any action in court or elsewhere against the Trust
or the Trustees, but only to the rights of said decedent under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust property, or right to call for a partition or
division of the same, or for any accounting, nor shall the ownership of Shares
constitute the Shareholders partners. Neither the Trust nor the Trustees, nor
any officer, employee or agent of the Trust shall have any power to bind
personally any Shareholder, nor, except as specifically provided herein, to call
upon any Shareholder for the payment of any sum of money or assessment
whatsoever other than such as the Shareholder may at any time personally agree
to pay.
Shareholder Inspection Rights
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Section 10. Any Shareholder or his agent may inspect and copy, during
normal business hours, any of the following documents of the Trust: By-Laws,
minutes of the proceedings of the Shareholders and annual financial statements
of the Trust, including a balance sheet and financial statements of operations.
The foregoing rights of inspection of Shareholders of the Trust are the
exclusive and sole rights of the Shareholders with respect thereto, and no
Shareholder of the Trust shall have, as a Shareholder, the right to inspect or
copy any of the books, records or other documents of the Trust except as
specifically provided in this Section 10 of this Article III or except as
otherwise determined by the Trustees.
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ARTICLE IV
The Trustees
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Number, Designation, Election, Term, Etc.
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Section 1.
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(a) Initial Trustee. Upon his execution of this Declaration of Trust
or a counterpart thereof or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof, Xxxxx X. Xxxxxxxx shall become
a Trustee hereof.
(b) Number. The Trustees serving as such, whether named above or
hereafter becoming Trustees, may increase or decrease the number of Trustees to
a number other than the number theretofore determined, which number shall not be
less than three nor more than fifteen except during the period that the initial
Trustee named above is sole Trustee. No decrease in the number of Trustees shall
have the effect of removing any Trustee from office prior to the expiration of
his term, but the number of Trustees may be decreased in conjunction with the
removal of a Trustee pursuant to subsection (e) of this Section 1.
(c) Term and Election. Each Trustee, whether named above or hereafter
becoming a Trustee, shall serve as a Trustee until the next meeting of
Shareholders, if any, called for the purpose of considering the election or
reelection of such Trustee or of a successor to such Trustee, and until the
election and qualification of his successor, if any, elected at such meeting, or
until such Trustee sooner dies, resigns, retires or is removed. Upon the
election and qualification of a new Trustee, the Trust estate shall vest in the
new Trustee (together with the continuing or other new Trustees) without any
further act or conveyance. Prior to any sale of Shares pursuant to any public
offering, the initial Trustee named above shall have the right to appoint other
persons as Trustees, each to serve with such initial Trustee as aforesaid until
the first meeting of Shareholders called for the purpose of the election or
reelection of such Trustee or of a successor to such Trustee.
(d) Resignation and Retirement. Any Trustee may resign his trust or
retire as a Trustee by written instrument signed by him and delivered to the
other Trustees or to the Chairman of the Board, if any, the President, or the
Secretary of the Trust, and such resignation or retirement shall take effect
upon such delivery or upon such later date as is specified in such instrument.
(e) Removal. Any Trustee may be removed for cause at any time by
written instrument signed by at least a majority of the number of Trustees prior
to such removal, specifying the date upon which such removal shall become
effective. Any Trustee may
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be removed with or without cause (i) by the vote of the Shareholders entitled to
vote more than fifty percent (50%) of the votes entitled to be cast on the
matter, voting together without regard to series at any meeting called for such
purpose, or (ii) be a written consent filed with the custodian of the Trust's
portfolio securities and executed by the Shareholders entitled to vote more than
fifty percent (50%) of the votes entitled to be cast on the matter, voting
together without regard to series.
Whenever ten or more Shareholders of record who have been such for at
least six months preceding the date of application, and who hold in the
aggregate Shares constituting at least one percent (1%) of the outstanding
Shares of the Trust, shall apply to the Trustees, in writing, stating that they
wish to communicate with other Shareholders with a view to obtaining signatures
to a request for a meeting to consider removal of a Trustee and accompanied by a
form of communication and request that they wish to transmit, the Trustees
shall, within five business days after receipt of such application, inform such
applicants as to the approximate cost of mailing to the Shareholders of records
the proposed communication and form of request. Upon the written request of such
applicants, accompanied by a tender of the material to be mailed and of the
reasonable expenses of mailing, the Trustees shall, within reasonable
promptness, mail such material to all Shareholders of record at their addresses
as recorded on the books of the Trust. Notwithstanding the foregoing, the
Trustees may refuse to mail such material on the basis and in accordance with
the procedures set forth in the last two paragraphs of Section 16(c) of the 1940
Act.
(f) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement, removal
or incapacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees, may (but so long as there are at least
three remaining Trustees, need not unless required by the 0000 Xxx) be filled
either by a majority of the remaining Trustees, even if less than a quorum,
through the appointment in writing of such other person as such remaining
Trustees in their discretion shall determine, or whenever deemed appropriate by
the remaining Trustees by the election by the Shareholders at a meeting called
for such purpose of a person to fill such vacancy. Upon the appointment or
election and qualification of a new Trustee as aforesaid, the Trust estate shall
vest in the new Trustee, together with the continuing Trustees, without any
further act or conveyance, except that any such appointment or election in
anticipation of a vacancy to occur by reason of retirement, resignation, or
increase in number of Trustees to be effective at a later date shall become
effective only at or after the effective date of said retirement, resignation,
or increase in number of Trustees.
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(g) Mandatory Election by Shareholders. Notwithstanding the foregoing
provisions of this Section 1, the Trustees shall call a meeting of the
Shareholders for the election of one or more Trustees at such time or times as
may be required in order that the provisions of the 1940 Act may be complied
with, and the authority hereinabove provided for the Trustees to appoint any
successor Trustee or Trustees shall be restricted if such appointment would
result in failure of the Trust to comply with any provision of the 1940 Act.
(h) Effect of Death, Resignation, Etc. The death, resignation,
retirement, removal or incapacity of the Trustees, or any one of them, shall
not operate to annul or terminate the Trust or to revoke or terminate any
existing agency or contract created or entered into pursuant to the terms of
this Declaration of Trust.
(i) No Accounting. Except under circumstances which would justify his
removal for cause, no person ceasing to be a Trustee as a result of his death,
resignation, retirement, removal or incapacity (nor the estate of any such
person), shall be required to make an accounting to the Shareholders or
remaining Trustees upon such cessation.
Powers
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Section 2. The Trustees, subject only to the specific limitations contained
in this Declaration of Trust, or otherwise imposed by the 1940 Act or other
applicable law, shall have, without further or other authorization and free from
any power or control of the Shareholders, full, absolute and exclusive power,
control and authority over the Trust assets and the business and affairs of the
Trust to the same extent as if the Trustees were the sole and absolute owners
thereof in their own right, and to do all such acts and things as in their sole
judgment and discretion are necessary and incidental to, or desirable for, the
carrying out of any of the purposes of the Trust or conducting the business of
the Trust. Any determination made in good faith by the Trustees of the purposes
of the Trust or the existence of any power or authority hereunder shall be
conclusive. In construing the provisions of this Declaration of Trust, there
shall be a presumption in favor of the grant of power and authority to the
Trustees. Without limiting the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust containing provisions relating to
the business of the Trust, the conduct of its affairs, its rights or powers, and
the rights or powers of its Shareholders, Trustees, officers, employees and
other agents, and may amend and repeal them to the extent that such By-Laws do
not reserve that right to the Shareholders; fill vacancies in their number,
including vacancies resulting from increases in their number, unless a vote of
the Trust's Shareholders is required to fill such vacancies pursuant to the 1940
Act; elect and remove such officers and appoint and terminate such agents as
they consider appropriate; appoint from
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their own number and terminate any one or more committees consisting of two or
more Trustees, including an executive committee which may, when the Trustees are
not in session, exercise some or all of the powers and authority of the Trustees
as the Trustees may determine; appoint an advisory board, the members of which
shall not be Trustees and need not be Shareholders; employ one or more
investment advisers or managers as provided in Section 6 of this Article IV;
employ one or more custodians of the assets of the Trust and authorize such
custodians to employ subcustodians and to deposit all or any part of such assets
in a system or systems for the central handling of securities; retain a transfer
agent or a Shareholder services agent or both; provide for the distribution of
Shares by the Trust through one or more principal underwriters or otherwise; set
record dates for the determination of Shareholders with respect to various
matters; and in general delegate such authority as they consider desirable to
any officer of the Trust, to any committee of the Trustees, and to any agent or
employee of the Trust, or to any such custodian or underwriter.
In furtherance of and not in limitation of the foregoing, the Trustees
shall have power and authority:
(a) To invest and reinvest in, to buy or otherwise acquire, to hold
for investment or otherwise, to sell or otherwise dispose of, to lend or to
pledge, to trade in or deal in securities or interests of all kinds, however
evidenced, or obligations of all kinds, however evidenced, or rights, warrants,
or contracts to sell or acquire such securities, interests, or obligations of
any private or public company, corporation, association, general or limited
partnership, trust or other enterprise or organization, foreign or domestic, or
issued or guaranteed by any national state government, foreign or domestic, or
their agencies, instrumentalities or subdivisions (including but not limited to
bonds, debentures, bills, time notes and all other evidences of indebtedness);
negotiable or non-negotiable instruments; and any and all future contracts and
options thereon, government securities and money market instruments (including
but not limited to bank certificates of deposit, finance paper, commercial
paper, bankers acceptances, and all kinds of repurchase agreements).
(b) To invest and reinvest in, to buy or otherwise acquire, to hold
for investment or otherwise, to sell or otherwise dispose of, or to enter into
leveraged or forward contracts with respect to foreign currencies and funds and
exchanges, and make deposits in banks, savings banks, trust companies, and
savings and loan associations, foreign or domestic.
(c) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, develop, and dispose of (by sale or otherwise) any property, real or
personal, and any interest therein.
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(d) To sell, exchange, lend, pledge, mortgage, hypothecate, write
options on, and lease any or all of the assets of the Trust.
(e) To vote or give assent, or exercise any rights of ownership with
respect to stock or other securities or property, and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper.
(f) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities.
(g) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in the name
of the Trustees or of the Trust, or in the name of a custodian, subcustodian or
other depositary, or a nominee or nominees, or otherwise.
(h) To allocate assets, liabilities and expenses of the Trust to a
particular series of Shares or to apportion the same among two or more series.
(i) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security or property
of which is or was held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer, and to pay
calls or subscriptions with respect to any securities held in the Trust.
(j) To join with other security holders in acting through a committee,
depositary, voting trustee, or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall deem
proper.
(k) 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.
(1) To enter into joint ventures, general or limited partnerships and
any other combinations or associations.
(m) To borrow funds.
(n) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty
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or suretyship, or otherwise assume liability for payment thereof; and to
mortgage and pledge the Trust property or any part thereof to secure any
of or all such obligations.
(o) To purchase and pay for, entirely out of Trust property, such
insurance as they may deem necessary or appropriate for the conduct of the
business, including without limitation insurance policies insuring the assets of
the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers or managers, principal
underwriters, or independent contractors of the Trust individually against all
claims and liabilities of every nature arising by reason of holding, being or
having held, any such office or position, or by reason of any action alleged to
have been taken or omitted by any such person as Shareholders, Trustee, officer,
employee, agent, investment adviser or manager, principal underwriter, or
independent contractor, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust would have the
power to indemnify such person against such liability.
(p) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees of common law trusts.
Except as otherwise provided herein or from time to time in the By-Laws, any
action to be taken by the Trustees may be taken by a majority of the Trustees
present at a meeting of Trustees (if a quorum be present), within or without
Massachusetts, including any meeting held by means of a conference telephone or
other communications equipment by means of which all persons participating in
the meeting can communicate with each other simultaneously, and participation by
such means shall constitute presence in person at a meeting, or by written
consents of a majority of the Trustees then in office.
Payment of Expenses; Allocation of Liabilities
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Section 3. The Trustees are authorized to pay, or to cause to be paid, out
of the principal or income of the Trust, or partly out of principal and partly
out of income as they deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in connection
with the management thereof, including but not limited to the Trustees'
compensation, and such expenses and charges for the services of the Trust's
officers, employees, investment adviser
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or manager, principal underwriter, auditor, counsel, custodian, transfer agent,
shareholder servicing agent, and such other agents or independent contractors,
and such other expenses and charges as the Trustees may deem necessary or proper
to incur.
The assets of a particular series of Shares shall be charged with the
liabilities (including, in the discretion of the Trustees or their delegate,
accrued expenses and reserves) incurred in respect of such series (but not with
liabilities incurred in respect of any other series) and such series shall also
be charged with its share of any other liabilities. The determination of the
Trustees shall be final and conclusive as to the amount of liabilities to be
charged to one or more particular series. The Trustees may delegate from time to
time the power to make such allocation to one or more Trustees or to an agent of
the Trust appointed for such purpose. The liabilities with which a series is so
charged are herein referred to as the "liabilities of" such series.
Section 4. The Trustees shall have the power, as frequently as they may
determine, to cause each Shareholder to pay directly, in advance or arrears, for
charges of the Trust's custodian or transfer or shareholder service or similar
agent, an amount fixed from time to time by the Trustees, by setting off such
charges due from such Shareholder from declared but unpaid dividends owed such
Shareholder, and/or by reducing the number of Shares in the account of such
Shareholder by that number of full and/or fractional Shares which represents the
outstanding amount of such charges due from such Shareholder.
Ownership of Assets of the Trust
--------------------------------
Section 5. Title to all of the assets of the Trust shall at al1 times be
considered as vested in the Trustees.
Advisory, Management and Distribution
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Section 6. Subject to a favorable vote of a majority of the outstanding
voting securities of a series of the Trust, the Trustees may, on behalf of such
series, at any time and from time to time, contract for exclusive or
nonexclusive advisory and/or management services for such series with a
corporation, trust, association or other organization, every such contract to
comply with such requirements and restrictions as may be set forth in the By-
Laws, and any such contract may contain such other terms interpretive of or in
addition to said requirements and restrictions as the Trustees may determine,
including without limitation authority to determine from time to time what
investments shall be purchased, held, sold or exchanged, and what portion, if
any, of the assets of such series shall be held uninvested and to make changes
in such series' investments. The Trustees may also, at any time and from time to
time, contract with a corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or principal
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underwriter for the Shares, every such contract to comply with such
requirements and restrictions as may be set forth in the By-Laws, and any such
contract may contain such other terms interpretive of, or in addition to, said
requirements and restrictions as the Trustees may determine.
The fact that:
(a) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager, advisor,
principal underwriter, or distributor or agent of or for any corporation, trust,
association, or other organization, or of or for any parent or affiliate of any
organization with which an advisory or management or principal underwriter's or
distributor's contract, or transfer, shareholder services, or other agency
contract may have been or may hereafter be made, or that any such organization,
or any parent or affiliate thereof is a Shareholder or has an interest in the
Trust, or that
(b) any corporation, trust, association, or other organization with
which an advisory or management or principal underwriter's or distributor's
contract, or transfer, shareholder services, or other agency contract may have
been or may hereafter be made also has an advisory or management contract, or
principal underwriter's or distributor's contract, or transfer, shareholder
services, or other agency contract with one or more other corporations, trusts,
associations, or other organizations, or has other businesses or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing
the same or create any liability or accountability to the Trust or its
Shareholders.
ARTICLE V
Shareholders' Voting Powers and Meetings
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Voting Powers
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Section 1. The Shareholders shall have power to vote only: (a) for the
election or removal of Trustees as provided in Article IV, Section 1; (b) with
respect to any investment advisor or manager as provided in Article IV, Section
6; (c) with respect to any termination or reorganization of the Trust or any
series thereof to the extent and as provided in Article IX, Section 1; (d) with
respect to any amendment of this Declaration of Trust to the extent and as
provided in Article IX, Section 4; (e) to the same extent as the stockholders of
a Massachusetts business corporation as to whether or not a court action,
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust or the Shareholders; and (f) with
respect to such additional matters relating to the
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Trust as may be required by law, the 1940 Act, this Declaration of Trust, the
By-Laws, or any registration of the Trust with the Commission (or any successor
agency), or any state, or as the Trustees may consider necessary or desirable.
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. On any matter submitted to a vote of
Shareholders, all Shares of the Trust then entitled to vote shall be voted by
individual series and not in the aggregate, 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 series, then only Shareholders of such series shall be entitled
to vote thereon. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy.
A proxy with respect to Shares held in the name of two or more persons
shall be valid if executed by any one of them unless at or prior to the exercise
of the proxy the Trust receives a specific written notice to the contrary from
any one of them. 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.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of Trust,
or by the By-Laws to be taken by Shareholders.
Shareholder Meetings
--------------------
Section 2. Meetings of Shareholders (including meetings involving only
one or more, but less than all series) may be called and held from time to time
for the purpose of taking action upon any matter requiring the vote or authority
of the Shareholders as herein provided, or upon any other matter deemed by the
Trustees to be necessary or desirable. Such meetings shall be held at the
principal office of the Trust as set forth in the By-Laws of the Trust, or at
any such other place within the United States as may be designated in the call
thereof, which call shall be made by the Trustees or the President of the Trust.
Meetings of Shareholders may be called by the Trustees or such other person or
persons as may be specified in the By-Laws, and shall be called by the Trustees
or such other person or persons as may be specified in the By-Laws upon written
application by Shareholders holding at least twenty-five percent (25%)
(or ten percent (10%) if the purpose of the meeting is to determine if a Trustee
is to be removed from office) of the Shares then outstanding, requesting a
meeting be called for a purpose requiring action by the Shareholders as provided
herein or in the
14
By-Laws, which purpose shall be specified in any such written application.
Shareholders shall be entitled to at least seven days written notice of any
meeting of the Shareholders.
Quorum and Required Vote
------------------------
Section 3. The presence at a meeting of Shareholders in person or by proxy
of Shareholders entitled to vote at least thirty percent (30%) of all votes
entitled to be cast at the meeting of each series entitled to vote as a series
shall be a quorum for the transaction of business at a Shareholders meeting,
except that where any provision of law or of this Declaration of Trust permits
or requires that the holders of Shares shall vote in the aggregate and not as a
series, then the presence in person or by proxy of Shareholders entitled to
vote at least thirty percent (30%) of all votes entitled to be cast at the
meeting (without regard to series) shall constitute a quorum. Any lesser number,
however, shall be sufficient for adjournments. Any adjourned session or
sessions may be held within a reasonable time after the date set for the
original meeting without the necessity of further notice.
Except when a larger vote is required by any provisions of the 1940 Act,
this Declaration of Trust, or the By-Laws, a majority of the Shares of each
series voted on any matter shall decide such matter insofar as that series is
concerned, provided that where any provision of law or of this Declaration of
Trust permits or requires that the holders of Shares vote in the aggregate and
not as a series, then a majority of the Shares voted on the matter (without
regard to series) shall decide that matter and a plurality shall elect a
Trustee.
Action by Written Consent
-------------------------
Section 4. Any action taken by Shareholders may be taken without a
meeting if Shareholders entitled to vote more than fifty percent (50%) of the
votes entitled to be cast on the matter of each series, or where any provision
of law or of this Declaration of Trust permits or requires that the holders of
Shares vote in the aggregate and not as a series, if Shareholders entitled to
vote more than fifty percent (50%) of the votes entitled to be cast thereon
(without regard to series or in either case such larger vote as shall be
required by any provision of this Declaration of Trust or the By-Laws) consent
to the action in writing and such written consents are 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.
15
Additional Provisions
---------------------
Section 5. The By-Laws may include further provisions for Shareholders
votes and meetings and related matters not inconsistent with the provisions
hereof.
ARTICLE VI
Distributions, Redemptions and Repurchases,
and Determination of Net Asset Value
------------------------------------
Distributions
-------------
Section 1. The Trustees may, in their sole discretion from time to time,
distribute to the Shareholders of any series such income and gains, accrued or
realized, as the Trustees may determine, after providing for actual and accrued
expenses and liabilities of such series (including such reserves as the Trustees
may establish) determined in accordance with this Declaration of Trust and good
accounting practices. The Trustees shall have full discretion to determine which
items shall be treated as income and which items as capital, and their
determination shall be binding upon the Shareholders. Distributions to any
series, if any be made, shall be in Shares of such series, in cash or otherwise,
and on a date or dates determined by the Trustees. At any time and from time to
time in their discretion, the Trustees may distribute to the Shareholders of any
series as of a record date or dates determined by the Trustees, in Shares of
such series, in cash or otherwise, all or part of any gains realized on the sale
or disposition of property of the Trust or otherwise, or all or part of any
other principal of the Trust. Each distribution pursuant to this Section 1 shall
be made ratably according to the number of Shares of the series held by the
several Shareholders on the applicable record date thereof, provided that
distributions from assets of a series may only be made to the holders of the
Shares of such series and provided that no distributions need be made on Shares
purchased pursuant to orders received or for which payment is made after such
time or times as the Trustees may determine. Any distribution paid in Shares
will be paid at the net asset value thereof as determined in accordance with
this Declaration of Trust. The Trustees have the power, in their discretion, to
distribute for any year amounts sufficient to enable the Trust (or, if
applicable, any series of the Trust) to qualify as a "regulated investment
company" under the Internal Revenue Code of 1954 as amended (or any successor
thereto) to avoid any liability for federal income tax in respect of that year.
Redemption and Repurchases
--------------------------
Section 2. Any holder of Shares of the Trust may, by presentation of a
request in proper form, together with his certificates, if any, for such Shares,
in proper form for transfer to the Trust or duly authorized agent of the Trust,
16
request redemption of his shares for the net asset value thereof (less any
redemption fee provided for hereunder, if such fee is then authorized)
determined and computed in accordance with the provisions of this Section 2 and
the provisions of Section 6 of this Article VI.
Upon receipt by the Trust or its duly authorized agent, as the case may be,
of such a request for redemption of Shares in proper form, such Shares shall be
redeemed at the net asset value per share of the particular series next
determined after such request is received or determined as of such other time
fixed by the Trustees as may be permitted or required by the 1940 Act; provided
that, the Trustees may authorize the imposition of a redemption fee, subject to
such terms and conditions as they may determine and as are permitted by the 1940
Act, which redemption fee may not exceed two percent (2%) of the net asset value
of such shares redeemed. The criteria for determining what constitutes a request
for redemption in proper form and the time of receipt of such request shall be
fixed by the Trustees.
The obligation of the Trust to redeem its shares of each series as set
forth above in this Section 2 shall be subject to the condition that such
obligation may be suspended by the Trust by or under authority of the Trustees
during any period or periods when and to the extent permissible under the 1940
Act. If there is such a suspension, any Shareholder may withdraw any request for
redemption which has been received by the Trust during any such period and the
applicable net asset value with respect to which would but for such suspension
be calculated as of a time during such period. Upon such withdrawal, the Trust
shall return to the Shareholder the certificates therefor, if any.
The trust may also purchase, repurchase or redeem Shares in accordance with
such other methods, upon such other terms, and subject to such other conditions
as the Trustees may from time to time authorize, at a price not exceeding the
net asset value of such Shares in effect when the purchase or repurchase or any
contract to purchase or repurchase is made. Shares of any series redeemed or
repurchased by the Trust hereunder shall be cancelled upon such redemption or
repurchase without further action by the Trust or the Trustees, and the number
of issued and outstanding Shares of such series shall thereupon be reduced by
such amount.
Payment for Shares Redeemed
---------------------------
Section 3. Payment of the redemption price for Shares redeemed pursuant to
this Article VI shall be made by the Trust or its duly authorized agent after
receipt by the Trust or its duly authorized agent of a request for redemption in
proper form (together with any certificates for such Shares as provided in
Section 2 above) in accordance with procedures and subject to conditions
prescribed by the Trustees; provided, however, that payment may be postponed
during the period in which the
17
redemption of Shares is suspended under Section 2 above. Subject to any
generally applicable limitation imposed by the Trustees, any payment on
redemption, purchase or repurchase by the Trust of Shares may, if authorized by
the Trustees, be made wholly or partly in kind, instead of in cash. Such payment
in kind shall be made by distributing securities or other property,
constituting, in the opinion of the Trustees, a fair representation of the
various types of securities and other property then held by the series of Shares
being redeemed, purchased or repurchased (but not necessarily involving a
portion of each of the series' holdings) and taken at their value used in
determining the net asset value of the Shares in respect of which payment is
made.
Redemptions at the Option of the Trust
--------------------------------------
Section 4. The Trust shall have the right at its option and at any time and
from time to time to redeem Shares of any Shareholder at the net asset value
thereof as determined in accordance with Section 6 of this Article VI, if at
such time such Shareholder owns fewer Shares of a series than, or Shares of a
series having an aggregate net asset value of less than, an amount determined
from time to time by the Trustees. Any such redemption at the option of the
Trust shall be made in accordance with such other criteria and procedures for
determining the Shares to be redeemed, the redemption date, and the means of
effecting such redemption as the Trustees may from time to time authorize.
Additional Provisions Relating to Redemptions and Repurchases
-------------------------------------------------------------
Section 5. The completion of redemption, purchase or repurchase of Shares
shall constitute a full discharge of the Trust and the Trustees with respect to
such Shares.
Determination of Net Asset Value
--------------------------------
Section 6. The term "net asset value" of each Share of a series as of any
particular time shall be the quotient obtained by dividing the value, as at such
time, of the net assets of such series (i.e., the value of the assets of such
series less the liabilities of such series, exclusive of liabilities represented
by the Shares of such series) by the total number of Shares of such series
outstanding at such time, all determined and computed as follows:
(a) The assets of a series shall be deemed to include such of the
following assets that are determined to be assets of such series as provided
under Section 3 of Article III: (i) all cash on hand or on deposit, including
any interest accrued thereon; (ii) all bills and demand notes and accounts
receivable; (iii) all bonds, time notes, shares of stock, subscription rights,
and other securities owned or contracted for by the Trust other than its own
Shares; (iv) all stock and cash dividends and
18
cash distributions to be received by the Trust and not yet received by it when
the net asset value is being determined as of the record date therefor or a date
subsequent thereto; (v) all interest accrued on any interest bearing securities
owned by the Trust (except interest accrued on securities which is included in
the quoted price); (vi) all repurchase agreements; and (vii) all other property
of every kind and nature, including prepaid expenses. The value of securities
for which market quotations are readily available shall be valued at prices
which, in the opinion of the Trustees or their delegate, most nearly represent
the current market value of such securities which may, but need not, be the most
recent bid price obtained from one or more of the market makers for such
securities, and all other securities and assets shall be valued at fair value as
determined in good faith by or pursuant to the direction of the Trustees.
Notwithstanding the foregoing, short-term debt obligations, commercial paper and
repurchase agreements may, but need not, be valued on the basis of quoted yields
for securities of comparable maturity, quality and type, or on the basis of
amortized cost.
(b) The liabilities of a series shall be deemed to include such of the
following liabilities that are determined to be liabilities of such series as
provided under Section 3 of Article IV: (i) all bills and accounts payable; (ii)
all administrative expenses payable and/or accrued; (iii) all contractual
obligations for the payment of money or property, including the amount of any
unpaid distributions upon the Shares of the Trust declared to Shareholders of
record at or before the time as of which the net asset value is being
determined; (iv) all reserves authorized or approved by the Trustees for taxes
or contingencies; and (v) all other liabilities of the Trust of whatsoever kind
and nature (except liabilities represented by outstanding Shares of the Trust).
(c) Any determination of net asset value shall be made by appraisal
or, when deemed appropriate by the Trustees, by calculation or estimate. Any
such calculation or estimate shall be based on changes in the market value of
representative or selected securities or based on changes in recognized market
averages since the last appraisal or such other method as the Trustees shall
determine in good faith accurately reflects fair value, and shall be made in a
manner which in the opinion of the Trustees or their delegate will fairly
reflect the changes in the net asset value.
(d) Notwithstanding any of the foregoing provisions of this Section 6,
the Trustees may prescribe such other bases for determining the per Share net
asset value of the Shares of a series as they shall deem necessary or desirable
to enable the Trust to comply with any provision of the 1940 Act.
The Trustees, or any officer, or officers or agent of the Trust designated
for the purpose by the Trustees, shall determine the net asset value of the
Shares of each series, and the
19
Trustees shall fix the time or times as of which the net asset value of the
Shares of each series shall be determined, and shall fix the periods during
which any such net asset value shall be effective as to sales, redemptions and
repurchases of, and other transactions in, the Shares of such series, except as
such times and periods for any such transaction may be fixed by other provisions
or this Declaration of Trust or by the By-Laws.
Determinations in accordance with this Section 6 made in good faith shall
be binding on all parties concerned.
How Long Shares are Outstanding
-------------------------------
Section 7. Shares of the Trust surrendered to the Trust for redemption by
it pursuant to the provisions of Section 2 of this Article VI shall be deemed to
be outstanding until the redemption price thereof is determined pursuant to this
Article VI, and thereupon and until paid, the redemption price thereof shall be
deemed to be a liability of the Trust. Shares of the Trust purchased by the
Trust in the open market shall be deemed to be outstanding until confirmation of
purchase thereof by the Trust, and thereupon and until paid, the purchase price
thereof shall be deemed to be a liability of the Trust. Shares of the Trust
redeemed by the Trust pursuant to Section 4 of this Article VI shall be deemed
to be outstanding until said Shares are deemed to be redeemed in accordance with
procedures adopted by the Trustees pursuant to said Section 4.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
----------------------------------------------------
Compensation
------------
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust if the rate thereof is prescribed by such Trustees.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking, or other services
and payment for the same by the Trust, it being recognized that such employment
may result in such Trustee being considered an Affiliated Person or an
Interested Person.
Limitation of Liability
-----------------------
Section 2. The Trustees shall not be responsible or liable in any event for
any neglect or wrongdoing of any officer, agent, employee, investment advisor,
or manager, principal underwriter, custodian or transfer agent of the Trust nor
shall any Trustee be responsible for the act or omission of any other Trustee.
Nothing in this Declaration of Trust shall protect any Trustee against any
liability to which such Trustee would otherwise be subject by reason of willful
misfeasance, bad faith, gross
20
negligence or reckless disregard of the duties involved in the conduct of his
office as Trustee.
Every note, bond, contract, instrument, certificate, Share or undertaking,
and every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been executed or done only in or with respect to
their or his capacity as Trustees or Trustee, and neither such Trustees or
Trustee nor the Shareholders shall be personally liable thereon.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer shall give notice that this
Declaration of Trust is on file with the Secretary of The Commonwealth of
Massachusetts, and shall recite that the same was executed or made by or on
behalf of the Trust by them as Trustees or Trustee or as officers or officer
and not individually, and that the obligations of such instrument are not
binding upon any of them or the Shareholders individually, but are binding only
upon the assets and property of the Trust and may contain such further recital
as he or they may deem appropriate, but the omission thereof shall not operate
to bind any Trustees or Trustee or officers or officer of shareholders or
Shareholder individually.
All persons extending credit to, contracting with, or having any claim
against the Trust shall look only to the assets of the Trust for payment under
such credit, contract or claim, and neither the Shareholders nor the Trustees,
nor any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor.
Trustees' Good Faith Action, Expert Advice, No Bond or Surety
-------------------------------------------------------------
Section 3. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon every one interested. A Trustee shall be liable
only for his own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee and for
nothing else, and shall not be liable for errors of judgment or mistakes of fact
or law. The Trustees may take advice of counsel or other experts with respect to
the meaning and operation of this Declaration of Trust and their duties as
Trustees hereunder, and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice. In discharging
their duties, the Trustees, when acting in good faith, shall be entitled to rely
upon the books of account of the Trust and upon written reports made to the
Trustees by any officer appointed by them, any independent public accountant,
and (with respect to the subject matter of the contract involved) any officer,
partner or responsible employee of any other party to any contract entered into
pursuant to Section 2 of Article IV. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
21
Liability of Third Persons Dealing with Trustees
------------------------------------------------
Section 4. No person dealing with the Trustees shall be bound to make any
inquiry concerning the validity of any transaction made or to be made by the
Trustees, or to see to the application of any payments made or property
transferred to the Trust or upon its order.
ARTICLE VIII
Indemnification
---------------
Subject to the exceptions and limitations contained in this Article, every
person who is, or has been, a Trustee or officer of the Trust (including persons
who serve at the request of the Trust as directors, officers or trustees of
another organization in which the Trust has an interest as a shareholder,
creditor or otherwise) hereinafter referred to as a "Covered Person", shall be
indemnified by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been such a
Trustee, director or officer, and against amounts paid or incurred by him in
settlement thereof.
No indemnification shall be provided hereunder to a Covered Person:
(a) against any liability to the Trust or its Shareholders by reason
of a final adjudication by the court or other body before which the proceeding
was brought that he engaged in willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his office;
(b) with respect to any matter as to which he shall have been finally
adjudicated not to have acted in good faith in the reasonable belief that his
action was in the best interests of the Trust; or
(c) in the event of a settlement or other disposition not involving a
final adjudication (as provided in paragraph (a) or (b)) and resulting in a
payment by a Covered Person, unless there has been either 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
office by the court or other body approving the settlement or other disposition,
or a reasonable determination based on a review of readily available facts (as
opposed to a full trial-type inquiry) that he did not engage in such conduct:
(i) by a vote of a majority of the Disinterested
22
Trustees acting on the matter (provided that a majority of the
Disinterested Trustees then in office act on the matter); or
(ii) by written opinion of independent legal counsel.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any other
rights to which any Covered Person may now or hereafter be entitled, shall
continue as to a person who has ceased to be such a Covered Person, and shall
inure to the benefit of the heirs, executors and administrators of such a
person. Nothing contained herein shall affect any rights to indemnification to
which Trust personnel other than Covered Persons may be entitled by contract or
otherwise under law.
Expenses of preparation and presentation of a defense to any claim, action,
suit or proceeding subject to a claim for indemnification under this Article
shall be advanced by the Trust prior to final disposition thereof upon receipt
of an undertaking by or on behalf of the recipient to repay such amount if it is
ultimately determined that he is not entitled to indemnification under this
Article, provided that either:
(a) such undertaking is secured by a surety bond or some other
appropriate security, or the Trust shall be insured against losses arising out
of any such advances; or
(b) a majority of the Disinterested Trustees acting on the matter
(provided that a majority of the Disinterested Trustees then in office act on
the matter) or independent legal counsel in a written opinion shall determine,
based upon a review of the readily available facts (as opposed to a full trial-
type inquiry), that there is reason to believe that the recipient ultimately
will be found entitled to indemnification.
As used in this Article, a "Disinterested Trustee" is one (a) who is not an
"interested person" of the Trust, as defined in the 1940 Act (including anyone
who has been exempted from being an "interested person" by any rule, regulation
or order of the Commission), and (b) against whom none of such actions, suits or
other proceedings or another action, suit or other proceeding on the same or
similar grounds is then or has been pending.
As used in this Article, 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.
23
In case any Shareholder or former Shareholder shall be held to be
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 a corporation
or other entity, its corporate or other general successor) shall be entitled out
of the assets of the Trust to be held harmless from and indemnified against all
loss and expense arising from such liability; provided, however, there shall be
no liability or obligation of the Trust arising hereunder to reimburse any
Shareholder for taxes paid by reason of such Shareholder's ownership of Shares
or for losses suffered by reason of any changes in value of any Trust assets.
ARTICLE IX
Miscellaneous
-------------
Duration, Termination and Reorganization of Trust
-------------------------------------------------
Section 1. Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust may be terminated at any time by the
Trustees by written notice to the Shareholders without a vote of the
Shareholders of the Trust or by the vote of the Shareholders entitled to vote
more than fifty percent (50%) of the votes entitled to be cast on the matter.
Any series of Shares may be terminated at any time by the Trustees by written
notice to the Shareholders of such series without a vote of the Shareholders of
such series or by the vote of the Shareholders of such series entitled to vote
more than fifty percent (50%) of the votes entitled to be cast on the matter.
Upon termination of the Trust or of any one or more series of Shares,
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, of the particular series as
may be determined by the Trustees, the Trust shall, in accordance with such
procedures as the Trustees consider appropriate, reduce the remaining assets of
the particular series to distributable form in cash or other securities, or any
combination thereof, and distribute the proceeds to the Shareholders of the
series involved, ratably according to the number of Shares of such series held
by the several Shareholders of such series on the date of termination.
At any time by the affirmative vote of the Shareholders of the affected
series entitled to vote more than fifty percent (50%) of the votes entitled to
be cast on the matter, the Trustees may sell, convey and transfer the assets of
the Trust, or the assets belonging to any one or more series, to another trust,
partnership, association or corporation organized under the laws of any state of
the United States, or to the Trust to be held as assets belonging to another
series of the Trust, in
24
exchange for cash, shares or other securities (including, in the case of a
transfer to another series of the Trust, Shares of such other series) with such
transfer being made subject to, or with the assumption by the transferee of, the
liabilities belonging to each series the assets of which are so distributed.
Following such transfer, the Trustees shall distribute such cash, shares or
other securities (giving due effect to the assets and liabilities belonging to,
and any other differences among, the various series, the assets belonging to
which have so been transferred) among the Shareholders of the series, the assets
belonging to which have been so transferred, and if all of the assets of the
Trust have been so distributed, the Trust shall be terminated.
Filing of Copies, References, Headings
--------------------------------------
Section 2. The original or a copy of this instrument and of each amendment
hereto shall be kept at the office of the Trust where it may be inspected by any
Shareholder. A copy of this instrument and of each amendment hereto shall be
filed by the Trust with the Secretary of The Commonwealth of Massachusetts and
with the Boston City Clerk, as well as any other governmental office where such
filing may from time to time be required. Any one dealing with the Trust may
rely on a certificate by an officer of the Trust as to whether or not any such
amendments have been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this instrument or of
any such amendments. In this instrument and in any such amendment, references to
this instrument, and all expressions like "herein", "hereof" and "hereunder"
shall be deemed to refer to this instrument as amended from time to time.
Headings are placed herein for convenience of reference only and shall not be
taken as a part hereof or control or affect the meaning, construction or effect
of this instrument. This instrument may be executed in any number of
counterparts, each of which shall be deemed an original.
Applicable Law
--------------
Section 3. This Declaration of Trust is made in The Commonwealth of
Massachusetts, and it is created under, and is to be governed by and construed
and administered according to, the laws of said Commonwealth. The Trust shall be
of the type commonly called a Massachusetts business trust, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
Amendments
----------
Section 4. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when authorized
so to do by vote of Shareholders holding more than fifty percent (50%) of the
Shares of each series
25
entitled to vote, except that an amendment which shall affect the holders of one
or more series of Shares, but not the holders of all outstanding series, shall
be authorized by vote of the Shareholders holding more than fifty percent (50%)
of the Shares entitled to vote of each series affected, and no vote of
Shareholders of a series not affected shall be required. Amendments having the
purpose of changing the name of the Trust or of supplying any omission, curing
any ambiguity, or curing, correcting or supplementing any provision which is
defective or inconsistent with the 1940 Act or with the requirements of the
Internal Revenue Code and the regulations thereunder for the Trust's obtaining
the most favorable treatment thereunder available to regulated investment
companies shall not require authorization by Shareholder vote.
Use of the Name
---------------
Section 5. The Trust is using the service xxxx "Oberweis" in its trust
name by permission of Oberweis Asset Management, Inc., an Illinois corporation
("OAM"), and the Trust's right to use the service xxxx "Oberweis" is subject to
the right of OAM or its successors or assigns at any time to control the usage
of the service xxxx "Oberweis" by the Trust, and to direct that the Trust stop
using the service xxxx "Oberweis" in any form or combination as part of its name
and service xxxx and in any literature or reference whatsoever. All proprietary
interest in the service xxxx "Oberweis" shall remain exclusively the property of
OAM and Oberweis Securities, Inc., an affiliate of OAM. At the written request
of OAM, or its successors or assigns, delivered to the Trust at its registered
office in Boston, Massachusetts, if any, and if none, at its principal office,
the Trust shall forthwith stop using the service xxxx "Oberweis" in accordance
with the provisions of such request. The Trust may enter into an agreement with
OAM further setting forth the terms and conditions under which the Trust shall
be entitled to use the service xxxx "Oberweis." The provisions of this Section 5
are binding upon the Trust, its Trustees, officers, Shareholders, creditors,
successors or assigns, and all other persons claiming under or through it. The
terms of this Section 5 do not preclude the use of the service xxxx "Oberweis"
by any other person or organization, whether now existing or hereafter created,
to which OAM, Oberweis Securities, Inc., or any other person or entity entitled
thereto may grant the right to such service xxxx.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal for
himself and his assigns as of the day and year first above written.
/s/ Xxxxx X. Xxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxx
(Seal)
26
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF SUFFOLK )
Then personally appeared the above named Xxxxx X. Xxxxxxxx who
acknowledged the foregoing instrument to be his free act and deed before
me this 7th day of July, 1986.
/s/ Xxxxxxx X. Xxxx
-----------------------------
Notary Public
XXXXXXX X. XXXX
My commission expires September 9, 1988
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