Exhibit (1)
AGREEMENT AND DECLARATION OF TRUST
OF
THE GALAXY VIP FUND
This AGREEMENT AND DECLARATION OF TRUST, made at Boston, Massachusetts
this 27th day of May, 1992 by and between the Settlor named below and the
Trustee whose signature is set forth below (the "Initial Trustee"),
W I T N E S S E T H T H A T:
WHEREAS, Xxxxx Xxxxxxxxxx, an individual residing in Boston,
Massachusetts (the "Settlor"), proposes to deliver to the Initial Trustee the
sum of one dollar ($1.00) lawful money of the United States of America in trust
hereunder and to authorize the Initial Trustee and all other Persons acting as
Trustees hereunder to employ such funds, and any other funds coming into their
hands or the hands of their successor or successors as such Trustees, to carry
on the business of an investment company, and as such of buying, selling,
investing in or otherwise dealing in and with stocks, bonds, debentures,
warrants, options, futures contracts and other securities and interests therein,
or calls or puts with respect to any of the same, or such other and further
investment media and other property as the Trustees may deem advisable, which
are not prohibited by law or the terms of this Declaration of Trust; and
WHEREAS, the Initial Trustee is willing to accept such sum, together
with any and all additions thereto and the income or increments thereof, upon
the terms, conditions and trusts hereinafter set forth; and
WHEREAS, it is proposed that the assets held by the Trustees may be
divided into separate funds or portfolios, each with its own separate investment
assets, investment objective, policies and purposes, and that the beneficial
interest in each such fund or portfolio be divided into transferable shares of
beneficial interest, with one or more separate classes of shares for each fund
or portfolio, all in accordance with the provisions hereinafter set forth; and
WHEREAS, it is desired that the trust established hereby (the "Trust")
be managed and operated as a trust with transferable shares under the laws of
Massachusetts, of the type commonly known as and referred to as a Massachusetts
trust with
transferable Shares, in accordance with the provisions hereinafter set forth;
NOW, THEREFORE, the Initial Trustee, for himself and his successors as
Trustees, hereby declares, and agrees with the Settlor, for himself and for all
Persons who shall hereafter become holders of shares of beneficial interest of
the Trust that the Trustees will hold the sum delivered to them upon the
execution hereof, and all other and further cash, securities and other property
of every type and description which they may in any way acquire in their
capacity as such Trustees, together with the income therefrom and the proceeds
thereof, IN TRUST NEVERTHELESS, to manage and dispose of the same for the
benefit of the holders from time to time of the shares of beneficial interest of
the several classes being issued and to be issued hereunder and in the manner
and subject to the provisions hereof, to wit:
I.
NAME
This trust shall be known as THE GALAXY VIP FUND (hereinafter called
the "Trust"), and the Trustees shall conduct the business of the Trust under
that name or any other name as they shall from time to time determine.
II.
DEFINITIONS
2.1 DEFINITION OF CERTAIN TERMS. As used in this Declaration of
Trust, the terms set forth below shall have the following meanings:
A. The "Act" refers to the Investment Company Act of 1940, as
now or hereafter amended, to the rules and regulations adopted from time to time
thereunder and to any order or orders thereunder which may from time to time be
applicable to the Trust.
B. The terms "affiliated person," "assignment" and "interested
person" shall have the respective meanings set forth in the Act. The term
"vote of a majority of outstanding Shares" shall mean the "vote of a majority of
the outstanding voting securities" as defined in the Section 2(a)(42) of the
Act.
C. The "Regulations" shall refer to the Code of Regulations of
the Trust as adopted and amended from time to time.
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D. The "Declaration of Trust" shall mean this Declaration of
Trust as amended or restated from time to time.
E. "Person" shall mean a natural person, a corporation, a
partnership, an association, a joint-stock company, a trust, a fund or any
organized group of persons whether incorporated or not.
F. "Shares" means the equal proportionate transferable units of
interest of each class into which the beneficial interest in the Trust may be
classified or reclassified from time to time by the Trustees acting under this
Declaration of Trust, or in the absence of such action, means the equal
proportionate transferable units of interest into which the entire beneficial
interest in the Trust shall be divided from time to time, and includes fractions
of Shares as well as whole Shares.
G. "Shareholder" means a record owner of Shares in the Trust.
H. The "Trustees" refers to the individual trustees of the
Trust named herein or elected in accordance with Article VI hereof in their
capacity as trustees hereunder and not as individuals and to their successor or
successors while serving in office as a trustee of the Trust, and includes a
single trustee.
I. "Trust Property" means any and all assets and property, real
or personal, tangible or intangible, which is owned or held by or for the
account of the Trust or the Trustees.
III.
PURPOSE OF TRUST; AGENT FOR SERVICE
The Trust is a Massachusetts trust with transferable Shares of the
type described in Chapter 182 Section 1 of the General Laws of the Commonwealth
of Massachusetts formed for the purpose of acting as a management investment
company under the Act; PROVIDED, HOWEVER, that the Trust may exercise all powers
which are ordinarily exercised by or permissible for Massachusetts trusts with
transferable Shares.
The Agent of the Trust for Service of Process within the Commonwealth
of Massachusetts shall be: CT Corporation System, Xxx-Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
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IV.
OWNERSHIP OF ASSETS OF THE TRUST
The assets of the Trust shall be held separate and apart from any
assets now or hereafter held in any capacity, other than as Trustees hereunder,
by the Trustees, including without limitation any successor Trustees. Legal
title to all the assets of the Trust shall be vested in the Trustees as joint
tenants except that the Trustees shall have power to cause legal title to any
assets of the Trust to be held by or in the name of one or more of the Trustees,
or in the name of the Trust, or in the name of any other person as nominee, on
such terms as the Trustees may reasonably determine. The right, title and
interest of the Trustees in the assets of the Trust shall vest automatically in
each person who may hereafter become a Trustee. Upon the resignation, removal or
death of a Trustee, such Trustee shall automatically cease to have any right,
title or interest in any of the assets of the Trust, and the right, title and
interest of such Trustee in the assets of the Trust shall vest automatically in
the remaining Trustees. Such vesting and cessation of title shall be effective
regardless of whether conveyancing documents (pursuant to Section 6.6 hereof or
otherwise) have been executed and delivered. Except to the extent otherwise
required by Article V hereof, no Shareholder shall be deemed to have severable
ownership in any individual asset of the Trust or any right of partition or
possession thereof, or shall be called upon to assume any loss of the Trust or
suffer an assessment of any kind by virtue of his ownership of Shares, but each
Shareholder shall have a proportionate undivided beneficial interest in tie
assets belonging to a particular class or classes of Shares to the extent
provided in Article V. The ownership of the Trust Property of every description
and the right to conduct any business hereinbefore described shall be vested
exclusively in the Trustees, 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 assume any
losses of the Trust or suffer an assessment of any kind by virtue of their
ownership of Shares. The Shares shall be personal property giving only the
rights specifically set forth in this Declaration of Trust. Shares shall not
entitle any holder thereof to preference, preemptive, appraisal, conversion or
exchange rights, except as the Trustees may determine pursuant to Article V
hereof.
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V.
SHAREHOLDERS; BENEFICIAL INTEREST IN THE TRUST;
PURCHASE AND REDEMPTION OF SHARES
5.1 SHARES IN THE TRUST.
A. The beneficial interest in the Trust shall at all times be
divided into an unlimited number of full and fractional transferable Shares with
a par value of $.001 per share. All Shares shall be of one class, PROVIDED that
subject to this Declaration of Trust and the requirements of applicable law, the
Trustees shall have the power to classify or reclassify any unissued Shares into
any number of additional classes of Shares by setting or changing in any one or
more respects, from time to time before the issuance thereof, their
designations, preferences, conversion or other rights, voting powers,
restrictions, limitations, qualifications or terms or conditions of redemption,
and PROVIDED FURTHER that the investment objectives, policies and restrictions
governing the management and operations of the Trust including the management of
assets belonging to any class of Shares, may from time to time be changed or
supplemented by the Trustees, subject to the requirements of the Act. The power
of the Trustees to classify or reclassify Shares shall include, without
limitation, the power to classify or reclassify any class of Shares into one or
more series of such class. A copy of each action of the Trustees by which
Shares are classified or reclassified pursuant to this subsection 5.1(A),
executed by a majority of the Trustees (or by an officer of the Trust pursuant
to a vote of a majority of the Trustees), shall be kept at the office of the
Trust where it may be inspected by any Shareholder, and one copy of each such
instrument shall be filed with the Secretary of The Commonwealth of
Massachusetts, as well as with any other governmental office where such filing
may from time to time be required by the laws of Massachusetts. All references
to Shares in this Declaration of Trust which are not accompanied by a reference
to any particular class of Shares shall be deemed to apply to all outstanding
Shares of any and all classes. All references in this Declaration of Trust to
any class of Shares shall include and refer to the Shares of any series thereof.
Upon the issuance of the first Share of a second class of Shares
classified or reclassified by the Trustees pursuant to this Section 5.1, all
Shares theretofore issued and outstanding shall automatically represent Shares
of a separate class having the preferences, conversion and other rights, voting
powers, restrictions, limitations, qualifications and terms and conditions of
redemption provided for in this Declaration of Trust with respect to any class
of Shares. The Trustees may from time to time divide or combine the outstanding
Shares of the Trust, or of any class or classes with the same alphabetical
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designation, into a greater lesser number without thereby changing the
proportionate beneficial interest of the Shares in the Trust as so divided or
combined or in the assets belonging to such class or classes, as the case may
be.
At any time that there are no Shares outstanding of a particular class
previously established and designated, the Trustees may abolish that class and
the establishment and designation thereof.
B. Subject always to the power of the Trustees to classify and
reclassify any unissued Shares pursuant to subsection A of this Section 5.1,
Shares of the Trust shall (unless the Trustees otherwise determine with respect
to a class of Shares at the time of establishing and designating the same) have
the following designations, preferences, conversion and other rights, voting
powers, restrictions, limitations, qualifications and terms and conditions of
redemption:
(1) DESIGNATIONS. The Board of Trustees shall give each
class of Shares an alphabetical designation ("A," "B," "C," etc.), and may give
any class of Shares such supplementary designations as the Board may deem
appropriate. More than one class of Shares may have the same alphabetical
designation.
(2) ASSETS BELONGING TO CLASSES WITH SAME ALPHABETICAL
DESIGNATION. All consideration received by the Trust for the issue and sale of
Shares of any class shall be commingled, invested and reinvested together with
the consideration received by the Trust for the issue and sale of Shares of such
other class or classes, if any, that have the same alphabetical designation,
along with all income, earnings, profits and proceeds derived from the
investment thereof, including any proceeds derived from the sale, exchange or
liquidation of such investments, any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, and any general
assets of the Trust not belonging to a particular class which the Trustees may,
in their sole discretion, allocate to such classes having the same alphabetical
designation, and shall irrevocably belong to the classes with respect to which
such assets, payments or funds were received or allocated for all purposes,
subject only to the rights of creditors, and shall be so handled upon the books
of account of the Trust. For purposes of this Declaration of Trust, such assets
and the income, earnings, profits and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation thereof, and any assets derived
from any reinvestment of such proceeds in whatever form, are referred to as
"assets belonging to" such classes. Each Share of the classes having the same
alphabetical designation shall share equally with each other Share of such
classes in the assets belonging to such classes.
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Shareholders of any class of Shares shall have no right, title or interest in or
to the assets belonging to any class of Shares with a different alphabetical
designation.
(3) LIABILITIES BELONGING TO CLASSES WITH SAME ALPHABETICAL
DESIGNATION. The assets belonging to classes of Shares with the same
alphabetical designation shall be charged with the direct liabilities in respect
of such classes and shall also be charged with such classes' proportionate share
of the general liabilities of the Trust as determined by comparing the assets
belonging to such classes with the aggregate assets of the Trust, PROVIDED, that
the Board of Trustees may, in their discretion, direct that any one or more
general liabilities of the Trust be allocated to the respective classes on a
different basis. The liabilities so charged to such classes are herein referred
to as "liabilities belonging to" such classes, and each Share of such classes
shall be charged equally with each other Share of a class having the same
alphabetical designation with the liabilities belonging to such classes, except
that:
(a) A class of Shares with respect to which agreements
are entered into by or on behalf of the Trust pursuant to which institutions
agree to provide services with respect to beneficial owners of Shares of that
class but not with respect to beneficial owners of Shares of other classes with
the same alphabetical designation shall bear the expenses and liabilities
relating to such agreements, as well as any other expenses directly attributable
to such class of Shares which the Trustees determine should be borne solely by
such class; and
(b) A class of Shares shall not be required to bear
the expenses and liabilities relating to any agreement described in clause (a)
above pursuant to which an institution agrees to provide services with respect
to beneficial owners of Shares of other classes with the same alphabetical
designation but not to beneficial owners of Shares of that class, or any other
expenses directly attributable to one or more other classes of Shares which the
Trustees determine should be borne solely by such other class or classes.
(4) DIVIDENDS AND DISTRIBUTIONS. Shares of classes having
the same alphabetical designation shall be entitled to such dividends and
distributions, in Shares or in cash or both, as may be declared from time to
time by the Trustees, acting in their sole discretion, with respect to such
classes, PROVIDED that such dividends and distributions shall be paid only out
of the lawfully available "assets belonging to" such classes as such term is
defined in subsection B(2) of this section 5.1.
(5) LIQUIDATING DISTRIBUTIONS. In the event of the
termination of the Trust and the winding up of its
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affairs, the Shareholders of classes having the same alphabetical designation
shall be entitled to receive out of the assets of the Trust available for
distribution to Shareholders, but other than general assets not belonging to any
particular class of Shares, the assets belonging to such classes and the assets
so distributable to the Shareholders of such classes shall, subject to the
allocation of certain liabilities to a particular class as set forth in
subsection B(3) of this Section 5.1, be distributed among such shareholders in
proportion to the number of Shares of such classes held by them and recorded in
their name on the books of the Trust. In the event that there are any general
assets not belonging to any particular class of Shares and available for
distribution, the Shareholders of classes having the same alphabetical
designation shall be entitled to receive a portion of such general assets
determined by comparing the assets belonging to such classes with the aggregate
assets of the Trust; and the assets so distributable to the Shareholders of such
classes shall, subject to the allocation of certain liabilities to a particular
class as set forth in subsection B(3) of this Section 5.1, be distributed among
such Shareholders in proportion to the number of Shares of such classes held by
them and recorded in their name on the books of the Trust.
(6) VOTING. The holder of each Share shall be entitled to
one vote for each full Share, and a proportionate fractional vote for each
fractional Share, irrespective of the class, then recorded in his name on the
books of the Trust, to the extent provided in Article VIII hereof.
(7) PREEMPTIVE RIGHTS. Shareholders shall have no
preemptive or other rights to subscribe to any additional Shares or other
securities issued by the Trust.
(8) CONVERSION RIGHTS. The Trustees shall have the
authority to provide from time to time that the holders of Shares of any class
shall have the right to convert or exchange said Shares for or into Shares of
one or more other classes in accordance with such requirements and procedures as
may be established from time to time by the Trustees.
(9) REDEMPTION OF SHARES. To the extent of the assets of
the Trust legally available for such redemptions, a Shareholder of the Trust
shall have the right to require the Trust to redeem his full and fractional
Shares of any class out of assets belonging to the classes with the same
alphabetical designation as such class at a redemption price equal to the net
asset value per Share next determined after receipt of a request to redeem in
proper form as determined by the Trustees, subject to the right of the Trustees
to suspend the right of redemption of Shares or postpone the date of payment of
such redemption price in accordance with the provisions of applicable law. The
Trustees shall establish such rules and procedures as they deem
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appropriate for the redemption of Shares, provided that all redemptions shall be
in accordance with the Act. Without limiting the generality of the foregoing,
the Trust shall, to the extent permitted by applicable law, have the right at
any time to redeem the Shares owned by any holder thereof: (a) in connection
with the termination of any class of Shares as provided hereunder; (b) if the
value of such Shares in the account or accounts maintained by the Trust or its
transfer agent for any class or classes of Shares is less than the value
determined from time to time by the Trustees as the minimum required for an
account or accounts of such class or classes, PROVIDED that the Trust shall
provide a Shareholder with written notice at least fifteen (15) days prior to
effecting a redemption of Shares as a result of not satisfying such requirement;
(c) to reimburse the Trust for any loss it has sustained by reason of the
failure of such Shareholder to make full payment for Shares purchased by such
Shareholder; (d) to collect any charge relating to a transaction effected for
the benefit of such Shareholder which is applicable to Shares as provided in the
prospectus relating to such Shares; or (e) if the net income with respect to any
particular class of Shares should be negative or it should otherwise be
appropriate to carry out the Trust's responsibilities under the Act, in each
case subject to such further terms and conditions as the Trustees may from time
to time establish. The redemption price of Shares in the Trust shall, except as
otherwise provided in this subsection, be the net asset value thereof as
determined by the Trustees from time to time in accordance with the provisions
of applicable law, less such redemption fee or other charge, if any, as may be
fixed by the Trustees. When the net income of any class with respect to which
the Trustees have, in their discretion, established a policy of maintaining a
constant net asset value per Share is negative or whenever deemed appropriate by
the Trustees in order to carry out the Trust's responsibilities under the Act,
the Trust may, without payment of compensation but in consideration of the
interests of the Trust and the holders of Shares of such class in maintaining a
constant net asset value per Share of such class, redeem pro rata from each
holder of record on such day, such number of full and fractional Shares of such
class as may be necessary to reduce the aggregate number of outstanding Shares
in order to permit the net asset value thereof to remain constant. Payment of
the redemption price, if any, shall be made in cash by the Trust at such time
and in such manner as may be determined from time to time by the Trustees
unless, in the opinion of the Trustees, which shall be conclusive, conditions
exist which make payment wholly in cash unwise or undesirable; in such event the
Trust may make payment in the assets belonging or allocable to the classes of
Shares having the same alphabetical designation as the class of the Shares
redemption of which is being sought, the value of which shall be determined as
provided herein.
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(10) TERMINATION OF CLASSES. Without the vote of the Shares
of any class then outstanding (unless otherwise required by applicable law), the
Trustees may:
(a) Sell and convey the assets belonging to any class
or classes of Shares having the same alphabetical designation to another trust
or corporation that is a management investment company (as defined in the Act)
and is organized under the laws of any state of the United States for
consideration which may include the assumption of all outstanding obligations,
taxes and other liabilities, accrued or contingent, belonging to such class(es)
and which may include securities issued by such trust or corporation. Following
such sale and conveyance, and after making provision for the payment of any
liabilities belonging to such class(es) that are not assumed by the purchaser of
the assets belonging to such class(es), the Trust may, at the Trustees' option,
redeem all outstanding Shares of such class(es) at net asset value as determined
by the Trustees in accordance with the provisions of applicable law, less such
redemption fee or other charge, if any, as may be fixed by the Trustees.
Notwithstanding any other provision of this Declaration of Trust to the
contrary, the redemption price may be paid in cash or by distribution of the
securities or other consideration received by the Trust for the assets belonging
to such class(es) upon such conditions as the Trustees deem, in their sole
discretion, to be appropriate consistent with applicable law and this
Declaration of Trust;
(b) Sell and convert the assets belonging to any class
or classes of Shares having the same alphabetical designation into cash and,
after making provision for the payment of all obligations, taxes and other
liabilities, accrued or contingent, belonging to such class(es), the Trust may,
at the Trustees' option, (i) redeem all outstanding Shares of such class(es) at
net asset value as determined by the Trustees in accordance with the provisions
of applicable law, less such redemption fee or other charge, if any, as may be
fixed by the Trustees upon such conditions as the Trustees deem, in their sole
discretion, to be appropriate consistent with applicable law and this
Declaration of Trust; or (ii) combine the assets belonging to such class(es)
following such sale and conversion with the assets belonging to any one or more
other class(es) of Shares having a different alphabetical designation pursuant
to and in accordance with subsection (c) of this Section 5.1(B)(10);
(c) Combine the assets belonging to any class or
classes of Shares having the same alphabetical designation with the assets
belonging to any one or more other classes of Shares having a different
alphabetical designation if the Trustees reasonably determine that such
combination will not have a material adverse effect on the Shareholders of any
class
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participating in such combination. In connection with any such combination of
assets the Shares of any class then outstanding may, if so determined by the
Trustees, be converted into Shares of any other class or classes of Shares
participating in such combination, or may be redeemed, at the option of the
Trustees, at net asset value as determined by the Trustees in accordance with
the provisions of applicable law, less such redemption fee or other charge, or
conversion cost, if any, as may be fixed by the Trustees upon such conditions as
the Trustees deem, in their sole discretion, to be appropriate consistent with
applicable law and this Declaration of Trust. Notwithstanding any other
provision of this Declaration of Trust to the contrary, any redemption price, or
part thereof, paid pursuant to this subsection may be paid in Shares of any
other class or classes participating in such combination; or
(d) Otherwise terminate and wind up the affairs of any
class or classes of Shares having the same alphabetical designation in
accordance with this Declaration of Trust and applicable law. In connection
with such termination of a class or classes of Shares having the same
alphabetical designation and the winding up of the affairs of such class(es),
all of the powers of the Trustees under this Declaration of Trust shall continue
until the affairs of such class(es) shall have been wound up, including the
power to fulfill or discharge the contracts of the Trust relating to such
class(es), to collect assets belonging to such class(es), to sell, convey,
assign, exchange, transfer or otherwise dispose of all or any part of the
remaining assets belonging to such class(es) to one or more persons at public or
private sale for consideration that may consist in whole or in part of cash,
securities or other property of any kind, to discharge or pay the liabilities
belonging to such class(es), and to do all other acts appropriate to liquidate
the business of such Class(es), provided that the holders of Shares of any class
shall not be entitled in any liquidation to receive any distribution upon the
assets belonging to any other class that has a different alphabetical
designation.
If no Shares of a class then remain outstanding, or after the excess
of the assets belonging to any class(es) of Shares over the liabilities
belonging to such class(es) has been distributed among the Shareholders of such
class(es) as provided in this Declaration of Trust, the Trustees may authorize
the termination of such class(es) of Shares.
5.2 PURCHASE OF SHARES. The Trustees may accept investments in the
Trust from such persons for such consideration, including cash or property, and
on such other terms as they may from time to time authorize and the Trustees may
in such manner acquire other assets (including the acquisition of assets subject
to, and in connection with, the
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assumption of liabilities) and businesses. The Trustees may in their discretion
reject any order for the purchase of Shares.
5.3 NET ASSET VALUE PER SHARE. The net asset value per Share of any
class of Shares shall be computed at such time or times as the Trustees may
specify pursuant to the Act. Assets shall be valued and net asset value per
Share shall be determined by such person or persons as the Trustees may appoint
under the supervision of the Trustees in such manner as the Trustees may
determine not inconsistent with the Act.
5.4 OWNERSHIP OF SHARES. The ownership of Shares shall be recorded
on the record books of the Trust. The Trustees may make such rules and
regulations as they consider appropriate for the issuance of Share certificates,
the transfer of Shares and similar matters. Certificates certifying the
ownership of Shares may be issued as the Trustees may determine from time to
time, PROVIDED that the Trustees shall have the power to call outstanding Share
certificates and to replace them with book entries. The record books of the
Trust shall be conclusive as to the identity of holders of Shares and as to the
number of Shares held by each Shareholder.
VI.
THE TRUSTEES
6.1 MANAGEMENT OF THE TRUST. The affairs of the Trust shall be
managed by the Trustees and they shall have all powers necessary or desirable to
carry out such responsibility, including without limitation the appointment of
and delegation of responsibility to such officers, employees, agents, and
contractors as they may select.
6.2 NUMBER AND TERM OF OFFICE. The number of Trustees shall be
determined from time to time by the Trustees themselves, but shall not be more
than ten. Subject to the provisions of this section relating to resignation or
removal, the Trustees shall have the power to set and alter the terms of office
of the Trustees, and they may at any time lengthen or shorten their own terms or
make their terms of unlimited duration, provided that the term of office of any
incumbent Trustee shall continue until terminated as provided in the concluding
sentence of this Section 6.2 or, if not so terminated until the election of such
Trustee's successor in office has become effective in accordance with this
section. A Trustee shall qualify by accepting in writing his election or
appointment and agreeing to be bound by the provisions of this Declaration of
Trust. Except as otherwise provided herein in the case of vacancies, Trustees
(other than the Initial Trustee provided in Section 6.3 hereof) shall be elected
by the Shareholders at such time or times as the Trustees
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shall determine that such election is required under Section 16(a) of the Act or
is otherwise advisable. Notwithstanding the foregoing, (a) any Trustee may
resign as a Trustee by written instrument signed by him and delivered to the
other Trustees at the principal business office of the Trust (without need for
prior or subsequent accounting), which shall take effect upon such delivery or
upon such later date as is specified therein; (b) any Trustee may be removed at
any time with or without cause by written instrument, signed by at least
two-thirds of the number of Trustees in office prior to such removal, specifying
the date when such removal shall become effective; (c) any Trustee who has
become incapacitated by illness or injury may be removed by written instrument
signed by a majority of the other Trustees; and (d) the term of a Trustee shall
terminate at his death, resignation, removal or adjudicated incompetency.
6.3 INITIAL TRUSTEE. The initial Trustee shall be Xxxxxx X. Xxxx,
who, by his execution hereof, has agreed to be bound by the provisions of this
Declaration of Trust. The initial Trustee shall have the power to appoint
additional Trustees prior to any public meeting.
6.4 QUORUM. At all meetings of the Trustees, a majority of the
Trustees shall constitute a quorum for the transaction of business and the
action of a majority of the Trustees present at any meeting at which a quorum is
present shall be the action of the Trustees unless the concurrence of a greater
proportion is required for such action by law, the Regulations or this
Declaration of Trust. If a quorum shall not be present at any meeting of
Trustees, the Trustees present thereat may by a majority vote adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. Meetings nay be held by means of a
conference telephone circuit or similar communications equipment by means of
which all persons participating may hear each other. The Trustees may also act
without a meeting, unless provided otherwise in this Declaration of Trust or
required by law, by written consent of a majority of the Trustees. As used
herein, a "majority of the Trustees" shall mean a majority of the Trustees in
office at the time in question or if there shall be only one (1) Trustee in
office then such term shall mean such Trustee.
The Trustees may appoint committees of Trustees and delegate powers to
them as provided in the Regulations. 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 a majority of the members thereof.
Unless provided otherwise in this Declaration of Trust, any action of any such
committee may be taken at a meeting at which a quorum is present by vote of a
majority of the members
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present or without a meeting by written consent of a majority of all the
members.
6.5 VACANCIES. In case a vacancy shall exist by reason of an
increase in number, or for any other reason, the remaining Trustee or Trustees
may fill such vacancy by appointing such other person as he or they in their
discretion shall select. An appointment of a Trustee may be made in
anticipation of a vacancy to occur at a later date by reason of retirement or
resignation of a Trustee or an increase in the number of Trustees; provided,
that such appointment will not become effective prior to such retirement or
resignation or such increase in the number of Trustees. Whenever a vacancy in
the number of Trustees shall occur, until such vacancy is filled as provided in
this Section 6.5, the Trustee or Trustees then in office, regardless of number,
shall have all the powers granted to the Trustees, and shall discharge all the
duties imposed on the Trustees, by this Declaration of Trust. A written
instrument certifying the existence of such vacancy signed by a majority of the
Trustees shall be conclusive evidence of the existence of such vacancy. Such
appointment shall be evidenced by a written instrument signed by a majority of
the then Trustees but the appointment shall not take effect until the individual
so named shall have qualified by accepting in writing the appointment and
agreeing to be bound by the terms of this Declaration of Trust. A vacancy may
also be filled by the Shareholders in an election held at an annual or special
meeting. As soon as any Trustee so appointed or elected shall have qualified,
the Trust estate shall vest in the new Trustee or Trustees, together with the
continuing Trustees, without any further act or conveyance.
6.6 EFFECT OF DEATH, RESIGNATION, ETC. OF TRUSTEE. The death,
resignation, removal, or incapacity of the Trustees, or any one of them, shall
not operate to annul the Trust or to revoke any existing agency created pursuant
to the terms of this Declaration of Trust. Upon the resignation or removal of a
Trustee, or his otherwise ceasing to be a Trustee, he 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 the resigning or removed Trustee. Upon the incapacity or death of any
Trustee, his legal representative shall execute and deliver on his behalf such
documents as the remaining Trustees shall require as provided in the preceding
sentence. The failure to request or deliver such documents shall not affect the
operation of the provisions of Article IV hereof.
6.7 POWERS. The Trustees in all instances shall act as principals
and are and shall be free from the control of the Shareholders. The Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or
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desirable in connection with the management of the Trust. The Trustees shall
not be bound or limited by present or future laws or customs in regard to Trust
investments, but shall have full authority and power to make any and all
investments which they, in their uncontrolled discretion, shall deem proper to
accomplish the purpose of this Trust. Without limiting the foregoing, and
subject to any applicable limitation in this Declaration of Trust or the
Regulations, the Trustees shall have power and authority:
A. To conduct, operate and carry on, either directly or through
one or more wholly-owned subsidiaries, the business of an investment company or
any other lawful business activity which the Trustees, in their sole and
absolute discretion, consider to be (1) incidental to the business of the Trust
or any class of Shares as an investment company, (2) conducive to or expedient
for the benefit or protection of the Trust or the Shareholders of any class of
Shares, or (3) calculated in any other manner to promote the interests of the
Trust or the Shareholders of any class of Shares.
B. To adopt Regulations not inconsistent with this Declaration
of Trust providing for the conduct of the affairs of the Trust and to amend and
repeal them to the extent that they do not reserve that right solely to the
Shareholders.
C. To issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in Shares of the
Trust; and to apply to any such repurchase, redemption, retirement, cancellation
or acquisition of Shares, any funds or other assets of the Trust, whether
constituting capital or surplus or otherwise, to the full extent now or
hereafter permitted by applicable law; and to divide or combine Shares without
thereby changing the proportionate beneficial interest in the Trust.
D. To issue, acquire, hold, resell, convey, write options on,
and otherwise deal in securities, debt instruments and other instruments and
rights of a financial character and to apply to any acquisition of securities
any property of the Trust whether from capital or surplus or otherwise.
E. To invest and reinvest cash, and to hold cash uninvested.
F. To borrow money, issue guarantees of indebtedness or
contractual obligations of others, to sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the Trust Property.
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G. To act as a distributor of Shares and as underwriter of, or
broker or dealer in, securities or other property.
H. 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.
I. To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities.
J. 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,
sub-custodian or other depositary or a nominee or nominees or otherwise.
K. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security of which is or was held in the Trust; and 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.
L. 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.
M. To enter into joint ventures, general or limited
partnerships and any other combinations or associations.
N. To enter into contracts of any kind and description.
O. To collect all property due to the Trust, to pay all claims,
including taxes, against the assets belonging to the Trust, to prosecute,
defend, 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, to foreclose any security interest securing any
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obligations by virtue of which any property is owed to the Trust, and to enter
into releases, agreements and other instruments.
P. To retain and employ any Person or Persons to serve on
behalf of the Trust as investment adviser, administrator, transfer agent,
custodian, underwriter, distributor or in such other capacities as they consider
desirable and to delegate such power and authority as they consider desirable to
any such Person or Persons.
Q. To indemnify any person with whom the Trust has dealings.
R. 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 Trust
Property 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 Shareholder, 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.
S. To engage in and to prosecute, defend, compromise, abandon,
or adjust, by arbitration or otherwise, any actions, suits, proceedings,
disputes, claims, and demands relating to the Trust or the Trust Property, and,
out of the Trust Property, to pay or to satisfy any debts, claims or expenses
incurred in connection therewith, including those of litigation, and such power
shall include without limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good faith business judgment,
consenting to dismiss any action, suit, proceeding, dispute, claims, or demand,
derivative or otherwise, brought by any person, including a Shareholder in such
Shareholder's own name or in the name of the Trust, whether or not the Trust or
any of the Trustees may be named individually therein or the subject matter
arises by reason of business for or on behalf of the Trust.
T. To establish pension, profit sharing, Share purchase, and
other retirement, incentive and benefit plans for any Trustees, officers,
employees and agents of the Trust.
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U. To determine and change the fiscal year of the Trust and the
method by which its accounts shall be kept.
V. To establish in their absolute discretion in accordance with
the provisions of applicable law the basis or method for determining the value
of the assets belonging to any class or classes of Shares, the value of the
liabilities belonging to any class or classes of Shares, the allocation of any
assets or liabilities to any class or classes of Shares, the net asset value of
any class of Shares, the times at which Shares of any class shall be deemed to
be outstanding or no longer outstanding and the net asset value of each Share of
any class for purposes of sales, redemptions, repurchases of Shares or
otherwise.
W. To determine in accordance with generally accepted
accounting principles and practices what constitutes net profits or net
earnings, and to determine what accounting periods shall be used by the Trust
for any purpose, whether annual or any other period, including daily; to set
apart out of the assets belonging to any class or classes of Shares such
reserves of funds for such purposes as it shall determine and to abolish the
same; to declare and pay any dividends and distributions to any class of Shares
in cash, securities or other property from any assets legally available
therefor, at such intervals (which may be as frequently as daily) or on such
other periodic basis, as it shall determine; to declare such dividends or
distributions by means of a formula or other method of determination, at
meetings held less frequently than the frequency of the effectiveness of such
declaration; to establish payment dates for dividends or any other distributions
on any basis, including dates occurring less frequently than the effectiveness
of declarations thereof; and to provide for the payment of declared dividends on
a date earlier or later than the specified payment date in the case of
Shareholders redeeming their entire ownership of Shares of any class.
X. To engage in any other lawful act or activity in which a
Massachusetts trust with transferable Shares or a corporation organized under
the Massachusetts Business Corporation Law may engage.
No one dealing with the Trustees shall be under any obligation to make
any inquiry concerning the authority of the Trustees, or to see to the
application of any payments made or property transferred to the Trustees or upon
their order.
6.8 TRUSTEES AND REPRESENTATIVES AS SHAREHOLDERS. Any Trustee,
representative or other agent of the Trust may acquire, own and dispose of
Shares of the Trust to the same extent as if he were not a Trustee,
representative or agent; and the Trust may issue and sell or cause to be issued
and sold Shares of the Trust
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to, and may buy such Shares from, any person with which such Trustee,
representative or agent is affiliated subject only to the general limitations
herein contained as to the sale and purchase of such Shares; all subject to any
restrictions which may be contained in the Regulations.
6.9 EXPENSES; TRUSTEE REIMBURSEMENT. The Trustees shall have the
power to incur and to pay (or shall be reimbursed) from the Trust Property all
expenses and disbursements of the Trust, including, without limitation, interest
expense, compensation payable to Trustees and representatives of the Trust,
taxes, fees and commissions of every kind incurred in connection with the
affairs of the Trust, expenses of issue, repurchase and redemption of Shares,
expenses of registering and qualifying the Trust and its Shares under Federal
and State securities laws and regulations, charges of custodians, transfer
agents, investment advisers, administrators and registrars, expenses in
obtaining securities prices for valuation purposes, expenses of preparing and
printing and distributing prospectuses, auditing and legal expenses, expenses of
reports to Shareholders, expenses of meetings of Shareholders and proxy
solicitations therefor, insurance expense, association membership dues and such
non-recurring items as may arise, including costs and expenses of litigation to
which the Trust is a party, and for all losses and liabilities by them incurred
in administering the Trust, PROVIDED that expenses, disbursements, losses and
liabilities incurred in connection with classes of Shares having the same
alphabetical designation or in connection with the management of the assets
belonging to such classes shall be payable solely out of the assets belonging to
such classes, and PROVIDED FURTHER that the Trustees shall have lien on the
Trust Property prior to any rights or interests of the Shareholders thereto for
the payment of any expenses, disbursements, losses and liabilities of the Trust.
6.10 POWER TO CARRY OUT TRUST'S PURPOSES; PRESUMPTIONS. The Trustees
shall have power to carry out any and all acts consistent with the Trust's
purposes through branches and offices both within and without the Commonwealth
of Massachusetts, in any and all states of the United States of America, in the
District of Columbia, and in any and all commonwealths, territories,
dependencies, 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. Any determination as to what is in the interests of the
Trust made by the Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration, the presumption shall be in favor of a grant of
power to the Trustees. The enumeration of any specific power herein shall not
be construed as limiting the aforesaid power. The Trustees shall
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not be required to obtain any court order to deal with the Trust Property.
6.11 DETERMINATIONS BY TRUSTEES. Any determination made in good faith
and, so far as accounting matters are involved in accordance with generally
accepted accounting principles, by or pursuant to the direction of the Trustees
as to the amount and value of assets, obligations or liabilities of the Trust or
any class of Shares, as to the amount of net income of the Trust or any class of
Shares from dividends and interest for any period or amounts at any time legally
available for the payment of dividends, as to the amount of any reserves or
charges set up and the propriety thereof, as to the time of or purpose for
creating reserves or as to the use, alteration or cancellation of any reserves
or charges (whether or not any obligation or liability for which such reserves
or charges shall have been created shall have been paid or discharged or shall
be then or thereafter required to be paid or discharged), as to the value of any
security owned by the Trust or any class or Shares, as to the allocation of any
assets or liabilities to a class or classes of Shares, as to the times at which
Shares of any class shall be deemed to be outstanding or no longer outstanding,
or as to any other matters relating to the issuance, sale, redemption or other
acquisition or disposition of securities or Shares, and any reasonable
determination made in good faith by the Trustees as to whether any transaction
constitutes a purchase of securities on "margin," a sale of securities "short,"
or any underwriting of the sale of, or a participation in any underwriting or
selling group in connection with the public distribution of, any securities,
shall be final and conclusive, and shall be binding upon the Trust and all
Shareholders, past, present and future, and Shares are issued and sold on the
condition and understanding, evidenced by the purchase of Shares or acceptance
of Share certificates, that any and all such determinations shall be binding as
aforesaid.
6.12 SERVICE IN OTHER CAPACITIES. Any Trustee, representative,
employee or agent of the Trust, including any investment adviser, transfer
agent, administrator, distributor, custodian or underwriter for the Trust, may
serve in any other capacity on his or its own behalf or on behalf of others, and
may engage in other business activities in addition to his or its services on
behalf of the Trust, PROVIDED that such other activities do not materially
interfere with the performance of his or its duties for or on behalf of the
Trust.
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VII.
AGREEMENTS WITH INVESTMENT ADVISER,
PRINCIPAL UNDERWRITER, ADMINISTRATOR,
TRANSFER AGENT, CUSTODIAN AND OTHERS
7.1 INVESTMENT ADVISER. The Trustees may, on such terms and
conditions as they may in their discretion determine, enter into a written
investment advisory agreement or agreements with any Person or Persons providing
for Portfolio management, investment advisory, statistical and research
facilities and other services pertaining to the assets belonging to one or more
classes of Shares. Notwithstanding any other provision hereof, the Trustees may
authorize such an investment adviser (subject to such general or specific
instructions as the Trustees may adopt) to effect purchases, sales or exchanges
of portfolio securities of such class(es) on behalf of the Trustees and to
determine the net asset value and net income of such class(es) or may authorize
any representative or Trustee to effect such purchases, sales or exchanges
pursuant to the recommendations of such investment adviser (all without further
action by the Trustees). Any such purchases, sales and exchanges so affected
shall be deemed to have been authorized by all of the Trustees.
7.2 ADMINISTRATOR. The Trustees may, on such terms and conditions as
they may in their discretion determine, enter into one or more agreements with
any Person or Persons providing for administrative services to one or more
classes of Shares, including assistance in supervising the affairs of such
class(es) and performance of administrative, clerical and other services
considered desirable by the Trustees.
7.3 PRINCIPAL UNDERWRITER. The Trustees may, on such terms and
conditions as they may in their discretion determine, enter into one or more
distribution agreements with any Person or Persons providing for sale of Shares
of one or more classes at a price at least equal to the net asset value per
Share of such class(es) and providing for sale of the Shares of such class(es)
pursuant to arrangements by which the Trust may either agree to sell the Shares
of such class(es) to the either party to the agreement or appoint such other
party its sales agent for such Shares. Such agreements may also provide for the
repurchase of Shares of such class(es) by such other party as principal or as
agent of the Trust, and may authorize the other party to enter into agreements
with others for the purpose of the distribution or repurchase of Shares of such
class(es).
7.4 TRANSFER AGENT. The Trustees may, on such terms and conditions
as they may in their discretion determine, enter into one or more agreements
with any Person or Persons providing for transfer agency and other services to
Shareholders of any class.
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7.5 CUSTODIAN. The Trustees may, on such terms and conditions as
they may in their discretion determine, enter into one or more agreements, with
any Person or Persons providing for the custody and safekeeping of the property
of the Trust or any class of Shares.
7.6 SERVICE AND DISTRIBUTION PLANS. The Trustees may, on such terms
and conditions as they may in their discretion determine, adopt one or more
plans pursuant to which Persons may be compensated directly or indirectly by the
Trust for Shareholder servicing, administration or distribution with respect to
one or more classes of Shares, including without limitation plans subject to
Rule 12b-1 under the Act, and the Trustees may enter into agreements pursuant to
such plans.
7.7 PARTIES TO AGREEMENTS. The same Person may be employed in
multiple capacities under Sections 7.1 through 7.6 of this Article VII and may
receive compensation in as many capacities as such Person serves. The Trustees
may enter into any agreement of the character described in this Article VII, or
any other agreement necessary or appropriate to the conduct of the business of
the Trust or any class of Shares, with any Person, including any Person in which
any Trustee, representative, employee or Shareholder of the Trust may be
interested, and no such agreement shall be invalidated or rendered voidable by
reason of the existence of any such relationship, nor shall any Person holding
such relationship be liable by reason of such relationship for any loss or
expense to the Trust under or by reason of said agreement or accountable for any
profit realized directly or indirectly therefrom.
VIII.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
8.1 VOTING POWERS. The Shareholders shall have power to vote (a) for
the election of Trustees as provided in Section 6.2 hereof, (b) to the same
extent as the shareholders of a Massachusetts business corporation when
considering whether 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, (c) with respect to any of the matters and to the extent
provided in Article X hereof, (d) with respect to such additional matters
relating to the Trust as may be required by law, by this Declaration of Trust,
by the Regulations of the Trust, by any requirement applicable to or agreement
of the Trust, or as the Trustees may consider desirable. Every Shareholder of
record shall have the right to one vote for every whole Share (other than Shares
held in the treasury of the Trust) standing in his name on the books of the
Trust, and to a proportional fractional vote for any fractional Share, as to any
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matter on which the Shareholder is entitled to vote. There shall be no
cumulative voting. Shares may be voted in person or by proxy. Until Shares are
issued, the Trustees may exercise all rights of Shareholders and may take any
action required or permitted to be taken by Shareholders by law, this
Declaration of Trust or the Regulations.
8.2 MEETINGS. Meetings of Shareholders may be called by the Trustees
as provided in the Regulations and shall be called by the Trustees upon the
written request of Shareholders owning at least ten percent (10%) of the
outstanding Shares entitled to vote.
8.3 QUORUM AND REQUIRED VOTE. The presence, in person or by proxy,
of Shareholders entitled to cast at least a majority of the votes which all
Shareholders are entitled to cast on the particular matter shall constitute a
quorum for the purpose of considering such matter. Action may be taken on all
matters for which a quorum exists, irrespective of the absence of a quorum on
other matters. If a meeting cannot be organized with respect to a particular
matter because a quorum for that matter has not attended, those present and
entitled to vote on such matter may adjourn the meeting to such reasonable time
and place as they may determine.
On any matter submitted to a vote of Shareholders, Shares with
different alphabetical class designations that are then issued and outstanding
and entitled to vote shall be voted in the aggregate and not by class except:
(1) as otherwise required by applicable law or permitted by the Board of
Trustees of the Trust, or (2) when the matter, as conclusively determined by the
Trustees, affects only the interests of the Shareholders of a class or classes
with a particular alphabetical designation (in which case only Shareholders of
the affected class or classes shall be entitled to vote thereon).
Each Share of classes having the same alphabetical designation shall
vote together in the aggregate and not by class on all matters submitted to a
vote of the Shareholders of such classes, except that:
(1) on any matter that pertains to the agreements or
expenses and liabilities described in subsection B(3)(a) of Section 5.1 hereof
(or to any plan or other document adopted by the Trust relating to said
agreements, expenses or liabilities) and is submitted to a vote of Shareholders
of the Trust, only the particular class of Shares specified therein shall be
entitled to vote, except that: (i) if said matter affects Shares in the Trust
other than such class of Shares, such other affected Shares in the Trust shall
also be entitled to vote, and in such case the particular class of Shares so
specified shall be voted in the aggregate together with such
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other affected Shares and not by class except where otherwise required by law or
permitted by the Board of Trustees of the Trust; and (ii) if said matter does
not affect the particular class of Shares specified therein, said class of
Shares shall not be entitled to vote (except where required by law or permitted
by the Board of Trustees) even though the matter is submitted to a vote of the
holders of Shares in the Trust other than Shares of such class; and
(2) on any matter that pertains to the agreements or
expenses and liabilities described in subsection B(3)(b) of Section 5.1 hereof
(or any plan or other document adopted by the Trust relating to said agreements,
expenses or liabilities) and is submitted to a vote of Shareholders of the
Trust, the particular class of Shares specified therein shall not be entitled to
vote, except where otherwise required by law or permitted by the Board of
Trustees of the Trust, and except that if said matter affects such class of
Shares, such class of Shares shall be entitled to vote, and in such case shall
be voted in the aggregate together with all other Shares in the Trust voting on
the matter and not by class except where otherwise required by law or permitted
by the Board of Trustees.
Subject to any applicable requirements of law or of this Declaration
of Trust or the Regulations: (a) the acts, at any duly organized meeting, of
the Shareholders present, in person or by proxy, entitled to cast at least a
majority of the votes which all Shareholders present are entitled to cast on the
particular matter shall be the acts of the Shareholders with respect to that
matter; and (b) in the election of Trustees, a plurality of the Shares voting
shall elect a Trustee.
8.4 SHAREHOLDER ACTION BY WRITTEN CONSENT. Any action which may be
taken by Shareholders may be taken without a meeting if not less than a majority
of the Shareholders entitled to vote on the matter consent to the action in
writing and the 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.
8.5 CODE OF REGULATIONS. The Regulations may include further
provisions not inconsistent with this Declaration of Trust for meetings of
Shareholders, votes, record dates, notices of meetings and related matters.
IX.
LIMITATIONS OF LIABILITY AND INDEMNIFICATION
9.1 LIABILITIES OF CLASSES. Liabilities belonging to classes of
Shares with the same alphabetical designation,
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including, without limitation, expenses, fees, charges, taxes, and liabilities
incurred or arising in connection with such classes, or in connection with the
management thereof, shall be paid only from the assets belonging to such
classes.
9.2 LIMITATION OF TRUSTEE LIABILITY. Every act or thing done or
omitted, and every power exercised or obligation incurred by the Trustees or any
of them in the administration of this Trust or in connection with any affairs,
property or concerns of the Trust, whether ostensibly in their own names or in
their Trust capacity, shall be done, omitted, exercised or incurred by them as
Trustees and not as individuals. Every person contracting or dealing with the
Trustees or having any debt, claim or judgment against them or any of them shall
look only to the funds and property of the Trust for payment or satisfaction.
No Trustee or Trustees of the Trust shall ever be personally liable for or on
account of any contract, debt, tort, claim, damage, judgment or decree arising
out of or connected with the administration or preservation of the Trust
Property or the conduct of any of the affairs of the Trust. Every note, bond,
contract, order or other undertaking issued by the Trust or the Trustees
relating to the Trust, and stationery used by the Trust shall include the notice
set forth in Section 9.5 of this Article IX (but the omission thereof shall not
be construed as a waiver of the foregoing provision, and shall not render the
Trustees personally liable).
It is the intention of this Section 9.2 that no Trustee shall be
subject to any personal liability whatsoever to any person for any action or
failure to act (including without limitation the failure to compel in any way
any former or acting Trustee to redress any breach of trust) except that nothing
in this Declaration of Trust shall protect any Trustee from any liability to the
Trust or its Shareholders to which he would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of his
duties, or by reason of reckless disregard of his obligations and duties as
Trustee; and that all persons shall look solely to the Trust Property belonging
to a class of Shares for satisfaction of claims of any nature arising in
connection with the affairs of such class of the Trust.
9.3 INDEMNIFICATION OF TRUSTEES, REPRESENTATIVES AND EMPLOYEES. The
Trust shall indemnify each of its Trustees against all liabilities and expenses
(including amounts paid in satisfaction of judgments, in compromise, as fines
and penalties, and as counsel fees) reasonably incurred by him in connection
with the defense or disposition of any action, suit or other proceeding, whether
civil or criminal, in which he may be involved or with which he may be
threatened, while as a Trustee or thereafter, by reason of his being or having
been such a Trustee EXCEPT with respect to any matter as to which he shall
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have been adjudicated to have acted in bad faith, willful misfeasance, gross
negligence or reckless disregard of his duties, PROVIDED that as to any matter
disposed of by a compromise payment by such person, pursuant to a consent decree
or otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless the Trust shall have received a written
opinion from independent legal counsel approved by the Trustees to the effect
that if either the matter of willful misfeasance, gross negligence or reckless
disregard of duty, or the matter of bad faith had been adjudicated, it would in
the opinion of such counsel have been adjudicated in favor of such person. The
rights accruing to any person under these provisions shall not exclude any other
right to which he may be lawfully entitled, PROVIDED that no person may satisfy
any right of indemnity or reimbursement hereunder except out of the property of
the Trust. The Trustees may make advance payments in connection with the
indemnification under this Section 9.3, PROVIDED that the indemnified person
shall have given a written undertaking to reimburse the Trust in the event it is
subsequently determined that he is not entitled to such indemnification.
The Trustees shall have the power to indemnify representatives and
employees of the Trust to the same extent that Trustees are entitled to
indemnification pursuant to this Section 9.3.
9.4 RELIANCE ON EXPERTS, ETC. Each Trustee and representative of the
Trust shall, in the performance of his 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 satisfactory to the Trust, or upon reports made to
the Trust by any of its representatives or employees or by the investment
adviser, the principal underwriter, selected dealers, accountants, appraisers or
other experts or consultants selected with reasonable care by the Trustees or
representatives of the Trust, regardless of whether such counsel or expert may
also be a Trustee.
9.5 LIMITATION OF SHAREHOLDER LIABILITY. Shareholders shall not be
subject to any personal liability in connection with the assets of the Trust for
the acts or obligations of the Trust. The Trustees shall have no power to bind
any Shareholder personally or to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay by way of subscription to any Shares or
otherwise. Every obligation, contract, instrument, certificate for Shares or
any other security of any class of the Trust or undertaking, and every other act
whatsoever executed in connection with the Trust or any class of Shares shall be
conclusively presumed to have been
-26-
executed or done by the executors thereof only in their capacities as Trustees
under the Declaration of Trust or in their capacity as officers, employees or
agents of the Trust and not individually. Every note, bond, contract, order or
other undertaking issued by or on behalf of the Trust or the Trustees relating
to the Trust or any class of Shares, and the stationery used by the Trust, shall
include a recitation limiting the obligation represented thereby to the Trust
and its assets (but the omission of such a recitation shall not operate to bind
any Shareholder), as follows:
"The names 'The Galaxy VIP Fund' and 'Trustees of The Galaxy VIP
Fund' refer respectively to the Trust created and the Trustees,
as trustees but not individually or personally, acting from time
to time under a Declaration of Trust dated May 27, 1992 which is
hereby referred to and a copy of which is on file at the office
of the State Secretary of The Commonwealth of Massachusetts and
at the Principal office of the Trust. The obligations of 'The
Galaxy VIP Fund' entered into in the name or on behalf thereof by
any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon
any of the Trustees, Shareholders or representatives of the Trust
personally, but bind only the Trust Property, and all persons
dealing with any class of shares of the Trust must look solely to
the Trust Property belonging to such class for the enforcement of
any claims against the Trust."
The rights accruing to a Shareholder under this Section 9.5 shall not
exclude any other right to which such Shareholder may be lawfully entitled, nor
shall anything herein contained restrict the right of the Trust to indemnify or
reimburse a Shareholder in any appropriate situation even though not
specifically provided for herein, PROVIDED that a Shareholder of any class of
Shares shall be indemnified only from assets belonging to the classes of Shares
with the same alphabetical designation.
9.6 INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder or
former Shareholder shall be held to be personally liable solely by reason of his
being or having been a Shareholder and not because of his acts or omissions or
for some other reason, the Shareholder or former Shareholder (or his 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 belonging to the classes of Shares with the same
alphabetical designation as that of the Shares owned by such Shareholder to be
held
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harmless from and indemnified against all loss and expense arising from such
liability. The Trust shall, upon request by the Shareholder, assume the defense
of any claim made against any Shareholder for any act or obligations of the
Trust and satisfy any judgment thereon from such assets.
X.
MISCELLANEOUS
10.1 TRUST NOT A PARTNERSHIP. It is hereby expressly declared that a
Massachusetts trust with transferable Shares and not a partnership, joint
venture, corporation, joint stock company or any form of legal relationship
other than a trust is created hereby. Nothing herein shall be construed to make
the Shareholders, either by themselves or with the Trustees, partners or members
of a joint stock association. No Trustee hereunder shall have any power to bind
personally either a representative of the Trust or any Shareholder. All persons
extending credit to, contracting with or having any claim against the Trust or
the Trustees shall look only to the assets of the Trust for payment under such
credit, contract or claim; ant neither the Shareholders nor the Trustees,
whether past, present or future, shall be personality liable therefor.
10.2 NO BOND OR SURETY. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
10.3 DURATION OF TRUST. This Trust shall continue without limitation
of time, PROVIDED that the Trust or any class of Shares may be terminated at any
time in accordance with the provisions of this Declaration of Trust and
applicable law.
10.4 MERGER, CONSOLIDATION AND SALE OF ASSETS. The Trust may merge
into or consolidate with any other corporation, association, trust or other
organization or may sell, lease or exchange all or substantially all of the
Trust Property, including its good will, upon such terms and conditions and for
such consideration when and as authorized by vote or written consent of the
Trustees and approved by the affirmative vote of the holders of not less than a
majority of the Shares outstanding and entitled to vote, voting in the aggregate
and not by class except to the extent that applicable law may require voting by
class, or by an instrument or instruments in writing without a meeting consented
to by the holders of not less than a majority of such Shares, voting in the
aggregate and not by class except to the extent that applicable law may require
voting by class.
10.5 INCORPORATION. With the approval of the holders of a majority of
the outstanding Shares, voting in the aggregate
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and not by class except to the extent that applicable law may require voting by
class, the Trustees may cause to be organized, or assist in organizing, a
corporation or corporations under the law of any jurisdiction, to carry on any
affairs in which the Trust shall directly or indirectly have any interest, and
to transfer the Trust Property to any such Person in exchange for any 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 Person in which the
Trust holds or is about to acquire securities or any other interest. The
Trustees may also cause a merger or consolidation between the Trust or any
successor thereto and any such Person if and to the extent permitted by law.
Nothing contained herein shall be construed as requiring approval of
Shareholders for the Trustees to organize or assist in organizing one or more
corporations, trusts, partnerships associations or the organizations and
selling, conveying or transferring a portion of the Trust Property to such
Person(s).
10.6 FILING OF COPIES, REFERENCES, HEADINGS. The original instrument
of this Declaration of Trust and of each amendment hereto shall be filed with
the State Secretary of the Commonwealth of Massachusetts as provided by law and
copies thereof shall be kept at the office of the Trust where they may be
inspected by any Shareholder. Each amendment so filed shall be accompanied by a
Certificate signed and acknowledged by a Trustee or by the Secretary or any
Assistant Secretary of the Trust stating that such action was duly taken in the
manner provided herein, and unless such amendment or such certificate sets forth
some later time for the effectiveness of such amendment, such amendment shall be
effective upon its filing. A restated Declaration Trust, integrating into a
single instrument all of the provisions of the Declaration of Trust that are
then in effect and operative, may be executed from time to time by a majority of
the Trustees and shall, upon filing with the State Secretary of the Commonwealth
of Massachusetts, be conclusive evidence of all amendments contained therein and
may thereafter be referred to in lieu of the initial Declaration of Trust and
the various amendments thereto. Anyone dealing with the Trust may rely on a
certificate by a representative of the Trust as to whether or not any such
amendment hereto may have been made and as to any matters in connection with the
Trust hereunder, with the same effect as if it were the original, and may rely
on a copy certified by a representative of the Trust to be a copy of this
instrument or of any amendment thereto. Headings are placed herein for
convenience of reference only and, in the case of any conflict, the text of this
instrument, rather than the headings, shall control. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original. All signatures to this instrument need not appear on the same page.
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10.7 APPLICABLE LAW. The Trust set forth in this instrument is a
trust made in the Commonwealth of Massachusetts and is to be governed by and
construed and administered according the laws of said Commonwealth.
10.8 PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
A. No provision of this Declaration of Trust shall be effective
to:
(1) Require a waiver of compliance with any provision of
the Securities Act of 1933, as amended, or the Act, or of any valid rule,
regulation or order of the Securities and Exchange Commission thereunder; or
(2) Protect or purport to protect any Trustee or officer of
the Trust against any liability to the Trust or its Shareholders to which he
would otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office.
B. The provisions of this Declaration of Trust are severable,
and if the Trustees shall determine with the advice of counsel that any of such
provisions is in conflict with the Act, the regulated investment company
provisions of the Internal Revenue Code, Chapter 182 of the General Laws of the
Commonwealth of Massachusetts or with any other applicable law or regulation,
then in such event the conflicting provision shall be deemed never to have
constituted a part of this Declaration of Trust, PROVIDED that such
determination shall not affect any of the remaining provisions of this
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
C. If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration of Trust in any jurisdiction.
10.9 AMENDMENT OF DECLARATION OF TRUST.
A. This Declaration of Trust may be amended upon a resolution
to that effect being adopted by the Trustees and approved by the affirmative
vote of the holders of not less than a majority of the outstanding Shares,
voting in the aggregate and not by class except to the extent that applicable
law may require voting by class.
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B. Notwithstanding any other provision hereof, until such time
as a Registration Statement under the Securities Act of 1933, as amended,
covering the first public offering of securities of the Trust shall have become
effective, this Declaration of Trust may be terminated or amended in any respect
by the affirmative vote of a majority of the Trustees.
C. The Trustees may amend this Declaration of Trust without a
vote of Shareholders to change the name of the Trust or to cure any error or
ambiguity or if they deem it necessary to conform this Declaration of Trust to
the requirements of applicable state or federal laws or regulations, including
without limitation the requirements of the regulated investment company
provisions of the Internal Revenue Code, but the Trustees shall not be liable
for failing so to do.
D. Notwithstanding any other provision hereof, this Declaration
of Trust may not be amended in any manner whatsoever that would impair the
exemption from personal liability of the Trustees and Shareholders of the Trust
or that would permit an assessment upon any Shareholder.
IN WITNESS WHEREOF, the undersigned have executed this Agreement and
Declaration of Trust in the capacities indicated, as of this 27th day of May,
1992.
/s/Xxxxx Xxxxxxxxxx, Settlor
-------------------------------
Xxxxx Xxxxxxxxxx, Settlor
/s/Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx,
Initial Trustee
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M A S S A C H U S E T T S
Suffolk, ss.:
On this 27th day of May, 1992, personally appeared before me Xxxxx
Xxxxxxxxxx, known to me and known to me to be the individual described in and
who executed the foregoing Agreement and Declaration of Trust, and acknowledged
the said Agreement and Declaration of Trust to be his free act and deed.
/s/Xxxx X. Good
----------------------------------
Notary Public
[NOTARIAL SEAL] My Commission Expires May 8, 1998
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M A S S A C H U S E T T S
Boston, ss.:
On this 27th day of May, 1992, personally appeared before me Xxxxxx X.
Xxxx, known to me and known to me to be the individual described in and who
executed the foregoing Agreement and Declaration of Trust, and acknowledged the
said Agreement and Declaration of Trust to be his free act and deed.
/s/Xxxxxxx X. Xxxxxxx
----------------------------------
Notary Public
[NOTARIAL SEAL] My Commission Expires 5/7/93
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