INTERNATIONAL CASH PORTFOLIOS
Declaration of Trust
Dated: November 6, 1985
THIS AGREEMENT AND DECLARATION OF TRUST made at Boston,
Massachusetts, this 6th day of November, 1985 by Xxxxxx X. Xxxxx (hereinafter
with any additional and successor trustees referred to as "the Trustees") and
the holders of shares of beneficial interest to be issued hereunder as
hereinafter provided.
W I T N E S S E T H :
WHEREAS, the Trustees have agreed to manage all property coming
into their hands as trustees of a Massachusetts business trust in accordance
with the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold
all cash, securities and other assets, 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 pro rata benefit of
the holders from time to time of Shares, whether or not certificated, in this
Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as "International
Cash Portfolios."
section 2. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The term "Commission" shall have the meaning provided in the
1940 Act;
(b) The "Trust" refers to the Massachusetts business trust
established by this Agreement and Declaration of Trust, as amended from time
to time;
(c) "Shareholder" means a record owner of Shares of the Trust;
(d) "Shares" means 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 of Shares is authorized by the
Trustees, the equal proportionate transferable units into which each series
of Shares shall be divided from time to time, and includes a fraction of a
Share as well as a whole Share;
(e) The "1940 Act" refers to the Investment Company Act of 1940,
and the Rules and Regulations thereunder, all as amended from time to time.
(f) The term "Manager" is defined in Article IV, Section 5; and
(g) The term "Person" shall mean an individual or any
corporation, partnership, joint venture, trust or other enterprise.
ARTICLE II
Purposes of Trust
This Trust is formed for the following purpose or purposes:
(a) to conduct, operate and carry on the business of an
investment company;
(b) to subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer, lend, write options
on, exchange, distribute or otherwise dispose of and deal in and with
securities of every nature, kind, character, type and form, including,
without limitation of the generality of the foregoing, all types of stocks,
shares, futures contracts, bonds, debentures, notes, bills and other
negotiable or non-negotiable instruments, obligations, evidences of interest,
certificates of interest, certificates of participation, certificates,
interests, evidences of ownership, guarantees, warrants, options or evidence
of indebtedness issued or created by or guaranteed as to principal and
interest by any state or local government or any agency or instrumentality
thereof, by the United States Government or any agency, instrumentality,
territory, district or possession thereof, by any corporation organized under
the laws of any state, the United States or any territory or possession
thereof or under the laws of any foreign country, bank certificates of
deposit, bank time deposits, bankers' acceptances and commercial paper; to
pay for the same in cash or by the issue of stock, including treasury stock,
bonds or notes of the Trust or otherwise; and to exercise any and all right,
powers and privileges of ownership or interest in respect of any and all
rights, powers and privileges of ownership or interest in respect of any and
all such investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto, with
power to designate one or more persons, firms, associations, or corporations
to exercise any of said rights, powers and privileges in respect of any said
instruments;
(c) to borrow money or otherwise obtain credit and to secure the
same by mortgaging, pledging or otherwise subjecting as security the assets
of the Trust;
(d) to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in, Shares
including Shares in fractional denominations, and to apply to any such
repurchase, redemptions, retirement, cancellation or acquisition of Shares of
any funds or other assets of the appropriate series of Shares, whether
capital or surplus or otherwise, to the full extent now or hereafter
permitted by the laws of The Commonwealth of Massachusetts;
(e) to conduct, its business, promote its purposes, and carry on
its operations in any and all of its branches and maintain 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
other parts of the world; and
(f) to do all and everything necessary, suitable, convenient, or
proper for the conduct, promotion, and attainment of any of the businesses
and purposes herein specified or which at any time may be incidental thereto
or may appear conductive to or expedient for the accomplishment of any of
such businesses and purposes and which might be engaged in or carried on by a
Trust organized under the Massachusetts General Laws, and to have and
exercise all of the powers conferred by the laws of The Commonwealth of
Massachusetts upon a Massachusetts business trust.
The foregoing provisions of this Article II shall be construed
both as purposes and powers and each as an independent purpose and power.
ARTICLE III
Beneficial Interest
Section 1. Shares of Beneficial Interest. The Shares of the
Trust shall be issued in one or more series as the Trustees may, without
Shareholder approval, authorize. Each series shall be preferred over all
other series in respect of the assets allocated to that series. The
beneficial interest in each series at all times shall be divided into Shares,
with or without par value as the Trustees may from time to time determine,
each of which shall represent an equal proportionate interest in the series
with each other Share of the same series, none having priority or preference
over another. The number of Shares authorized shall be unlimited, and the
Shares so authorized may be represented in part by fractional Shares. From
time to time, the Trustees may divide or combine the Shares of any series
into a greater or lesser number without thereby changing the proportionate
beneficial interests in the series.
Section 2. Ownership of Shares. The ownership of Shares will be
recorded in the books of the Trust or a transfer agent. The record books of
the Trust or any transfer agent, as the case may be, shall be conclusive as
to who are the holders of Shares of each series and as to the number of
Shares of each series held from time to time by each. No certificates
certifying the ownership of Shares need be issued except as the Trustees may
otherwise determine from time to time.
Section 3. Issuance of Shares. The Trustees are authorized,
from time to time, to issue or authorize the issuance of Shares at not less
than the par value thereof, if any, and to fix the price or the minimum price
or the consideration (in cash and/or such other property, real or personal,
tangible or intangible, as from time to time they may determine) or minimum
consideration for such Shares. Anything herein to the contrary
notwithstanding, the Trustees may issue shares pro rata to the Shareholders
at any time as a stock dividend.
All consideration received by the Trust for the issue or sale of
Shares of each 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 belong irrevocably
to the series of Shares with respect to which the same were received by the
Trust 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.
Shares may be issued in fractional denominations to the same
extent as whole Shares, and Shares in fractional denominations shall be
Shares having proportionately to the respective fractions represented thereby
all the rights of whole Shares, including, without limitation, the right to
vote, the right to receive dividends and distributions, and the right to
participate upon liquidation of the Trust or of a particular series of Shares.
Section 4. No Preemptive Rights. Shareholders shall have no
preemptive or other right to subscribe for any additional Shares or other
securities issued by the Trust.
Section 5. Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal property giving only the
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 hereof and to have become a party hereto. 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 an 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 any Shareholder or Trustee personally or to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever
other than such as the Shareholder at any time personally may agree to pay by
way of subscription for any Shares or otherwise. Every note, bond, contract
or other undertaking issued by or on behalf of 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 or Trustee personally).
ARTICLE IV
Trustees
Section 1. Election. A Trustee may be elected either by the
Trustees or the Shareholders. The Trustees named herein shall serve until
the first meeting of the Shareholders or until the election and qualification
of their successors. Prior to the first meeting of Shareholders the initial
Trustees hereunder may elect additional Trustees to serve until such meeting
and until their successors are elected and qualified. The Trustees also at
any time may elect Trustees to fill vacancies in the number of Trustees. The
number of Trustees shall be fixed from time to time by the Trustees and, at
or after the commencement of the business of the Trust, shall be not less
than three. Each Trustee, whether named above or hereafter becoming a
Trustee, shall serve as a Trustee during the lifetime of this Trust, until
such Trustee dies, resigns, retires, or is removed, or, if sooner, until the
next meeting of Shareholders called for the purpose of electing Trustees and
the election and qualification of his successor. Subject to Section 16(a) of
the 1940 Act, the Trustees may elect their own successors and, pursuant to
this Section, may appoint Trustees to fill vacancies.
Section 2. Powers. The Trustees shall have all powers necessary
or desirable to carry out the purposes of the Trust, including, without
limitation, the powers referred to in Article II hereof. Without limiting
the generality of the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust providing for the conduct of the
business of the Trust and may amend and repeal them to the extent that they
do not reserve that right to the Shareholders; they may fill vacancies in
their number, including vacancies resulting from increases in their own
number, and may elect and remove such officers and employ, appoint and
terminate such employees or agents as they consider appropriate; they may
appoint from their own number and terminate any one or more committees; they
may employ one or more custodians of the assets of the Trust and may
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 and a Shareholder servicing agent, or
both, provide for the distribution of Shares through a principal underwriter
or otherwise, set record dates, and in general delegate such authority as
they consider desirable (including, without limitation, the authority to
purchase and sell securities and to invest funds, to determine the net income
of the Trust for any period, the value of the total assets of the Trust and
the net asset value of each Share, and to execute such deeds, agreements or
other instruments either in the name of the Trust or the names of the
Trustees or as their attorney or attorneys or otherwise as the Trustees from
time to time may deem expedient) to any officer of the Trust, committee of
the Trustees, any such employee, agent, custodian or underwriter or to any
Manager.
Without limiting the generality of the foregoing, the
Trustees shall have full power and authority:
(a) To invest and reinvest cash and to hold cash
uninvested;
(b) 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;
(c) 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 Trust or a custodian,
subcustodian or other depository or a nominee or nominees or otherwise;
(d) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or concern, any
security of which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or concern, and to
pay calls or subscriptions with respect to any security held in the Trust;
(e) 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;
(f) 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;
(g) 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, provided that any liabilities or expenses incurred by a particular
series of Shares shall be payable solely out of the assets of that series;
(h) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(i) 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
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; and
(j) 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.
Further, without limiting the generality of the foregoing, the
Trustees shall have full power and authority to incur and pay out of the
principal or income of the Trust such expenses and liabilities as may be
deemed by the Trustees to be necessary or proper for the purposes of the
Trust; provided, however, that all expenses and liabilities incurred or
arising in connection with a particular series of Shares, as determined by
the Trustees, shall be payable solely out of the assets of that series.
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 authority granted by the Trustees, as to the
amount of the assets, debts, obligations or liabilities of the Trust; the
amount of any reserves or charges set up and the propriety thereof; the time
of or purpose for creating such reserves or charges; the use, alteration or
cancellation of any reserves or charges (whether or not any debt, 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); the price or closing bid or asked price of any
investment owned or held by the Trust; the market value of any investment or
fair value of any other asset of the Trust; the number of Shares outstanding;
the estimated expense to the Trust in connection with purchases of its
Shares; the ability to liquidate investments in an orderly fashion; the
extent to which it is practicable to deliver a cross-section of the portfolio
of the Trust in payment for any such Shares, or as to any other matters
relating to the issue, sale, purchase and/or other acquisition or disposition
of investments or Shares of the Trust, shall be final and conclusive, and
shall be binding upon the Trust and its Shareholders, past, present and
future, and Shares are issued and sold on the condition and understanding
that any and all such determinations shall be binding as aforesaid.
Section 3. Meetings. At any meeting of the Trustees, a majority
of the Trustees then in office shall constitute a quorum. Any meeting may be
adjourned from time to time by a majority of the votes cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
When a quorum is present at any meeting, a majority of the
Trustees present may take any action, except when a larger vote is required
by this Declaration of Trust, the By-Laws or the 1940 Act.
Any action required or permitted to be taken at any meeting of
the Trustees or of any committee thereof may be taken without a meeting, if a
written consent to such action is signed by a majority of the Trustees or
members of any such committee then in office, as the case may be, and such
written consent is filed with the minutes of proceedings of the Trustees or
any such committee.
The Trustees or any committee designated by the Trustees may
participate in a meeting of the Trustees or such committee by means of a
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other at the same
time. Participation by such means shall constitute presence in person at a
meeting.
Section 4. Ownership of Assets of the Trust. Title to all of
the assets of each series of Shares of the Trust at all times shall be
considered as vested in the Trustees.
Section 5. Investment Advice and Management Services. 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. The Trustees from time
to time may enter into a written contract or contracts with any person or
persons (herein called the "Manager"), including Huntington Capital Advisers
Inc. and BT Investment Management Limited or any other firm, corporation,
trust or association in which any Trustee or Shareholder may be interested,
to act as investment advisers and/or managers of the Trust and to provide
such investment advice and/or management as the Trustees from time to time
may consider necessary for the proper management of the assets of the Trust,
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 the Trust shall be held uninvested and to make changes
in the Trust's investments. Any such contract shall be subject to the
requirements of the 1940 Act with respect to its continuance in effect, its
termination and the method of authorization and approval of such contract, or
any amendment thereto or renewal thereof.
Any Trustee or any organization with which any Trustee may be
associated also may act as broker for the Trust in making purchases and sales
of securities for or to the Trust for its investment portfolio, and may
charge and receive from the Trust the usual and customary commission for such
service. Any organization with which a Trustee may be associated in acting
as broker for the Trust shall be responsible only for the proper execution of
transactions in accordance with the instructions of the Trust and shall be
subject to no further liability of any sort whatever.
The Manager, or any affiliate thereof, also may be a distributor
for the sale of Shares by separate contract or may be a person controlled by
or affiliated with any Trustee or any distributor or a person in which any
Trustee or any distributor is interested financially, subject only to
applicable provisions of law. Nothing herein contained shall operate to
prevent any Manager, who also acts as such a distributor, from also receiving
compensation for services rendered as such distributor.
Section 6. Removal and Resignation of Trustees. The Trustees or
the Shareholders (by vote of 66-2/3% of the outstanding shares entitled to
vote thereon) may remove at any time any Trustee with or without cause, and
any Trustee may resign at any time as Trustee, without penalty by written
notice to the Trust; provided that sixty days' advance written notice shall
be given in the event that there are only three or less Trustees at the time
a notice of resignation is submitted.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. The Shareholders shall have power to
vote only (i) for the election of Trustees as provided in Article IV, Section
1, of this Declaration of Trust; provided, however, that no meeting of
Shareholders is required to be called for the purpose of electing Trustees
unless and until such time as less than a majority of the Trustees have been
elected by the Shareholders, (ii) for the removal of Trustees as provided in
Article IV, Section 6, (iii) with respect to any Manager as provided in
Article IV, Section 5, (iv) with respect to any amendment of this Declaration
of Trust as provided in Article IX, Section 8, (v) with respect to a
consolidation, merger or certain sales of assets as provided in Article IX,
Section 4, (vi) with respect to the termination of the Trust or a series of
Shares as provided in Article IX, Section 5, (vii) to the same extent as the
stockholders of a Massachusetts business corporation, as to whether or not a
court action, proceeding or claim should be brought or maintained
derivatively or as a class action on behalf of the Trust or the Shareholders,
and (viii) with respect to such additional matters relating to the Trust as
may be required by law, by this Declaration of Trust, or the By-Laws of the
Trust or any registration of the Trust with the Commission or any state, or
as the Trustees may consider desirable. Each whole Share shall be entitled
to one vote as to any matter on which it is entitled to vote (except that in
the election of Trustees said vote may be cast for as many persons as there
are Trustees to be elected), and each fractional Share shall be entitled to a
proportionate fractional vote. Notwithstanding any other provision of this
Declaration of Trust, on any matter submitted to a vote of Shareholders, all
Shares of the Trust then entitled to vote shall be voted by individual
series, except (i) when required by the 1940 Act, Shares shall be voted in
the aggregate and not by individual series and (ii) 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 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 any By-Laws of the Trust to be taken by
Shareholders.
Section 2. Meetings. Meetings of the 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 upon the written request of
Shareholders owning at least 30% of the outstanding Shares entitled to vote.
Shareholders shall be entitled to at least ten days' prior notice of any
meeting.
Section 3. Quorum and Required Vote. Thirty percent (30%) of
the outstanding Shares 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 holders of any series shall
vote as a series, then thirty percent (30%) of the aggregate number of Shares
of that series entitled to vote shall be necessary to constitute a quorum for
the transaction of business by that series. Any lesser number, however,
shall be sufficient for adjournment and any adjourned session or sessions may
be held within 90 days after the date set for the original meeting without
the necessity of further notice. Except when a larger vote is required by
any provision of this Declaration of Trust or the By-Laws of the Trust and
subject to any applicable requirements of law, a majority of the Shares voted
shall decide any question and a plurality shall elect a Trustee, provided
that where any provision of law or of this Declaration of Trust permits or
requires that the holders of any series shall vote as a series, then a
majority of the Shares of that series voted on the matter (or a plurality
with respect to the election of a Trustee) shall decide that matter insofar
as that series is concerned.
Section 4. Action by Written Consent. Any action
required or permitted to be taken at any meeting may be taken without a
meeting if a consent in writing, setting forth such action, is signed by all
the Shareholders entitled to vote on the subject matter thereof and such
consent is filed with the records of the Trust.
Section 5. Additional Provisions. The By-Laws may include
further provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Distributions and Redemptions
Section 1. Distributions. The Trustees shall distribute
periodically to the Shareholders of each series of Shares an amount
approximately equal to the net income of that series, determined by the
Trustees or as they may authorize and as herein provided. Distributions of
income may be made in one or more payments, which shall be in Shares, cash or
otherwise, and on a date or dates and as of a record date or dates determined
by the Trustees. At any time and from time to time in their discretion, the
Trustees also may cause to be distributed to the Shareholders of any one or
more series as of a record date or dates determined by the Trustees, in
Shares, cash or otherwise, all or part of any gains realized on the sale or
disposition of the assets of the series or all or part of any other principal
of the Trust attributable to the series. 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 record date for such
distribution, provided that no distribution 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.
Section 2. Determination of Net Income. In determining the net
income of each series of Shares for any period, there shall be deducted from
income for that period (a) such portion of all charges, taxes, expenses and
liabilities due or accrued as the Trustees shall consider properly chargeable
and fairly applicable to income for that period or any earlier period and (b)
whatever reasonable reserves the Trustees shall consider advisable for
possible future charges, taxes, expenses and liabilities which the Trustees
shall consider properly chargeable and fairly applicable to income for that
period or any earlier period. The net income of each series for any period
may be adjusted for amounts included on account of net income in the net
asset value of Shares issued or redeemed or repurchased during that period.
In determining the net income of a series for a period ending on a date other
than the end of its fiscal year, income may be estimated as the Trustees
shall deem fair. Gains on the sale or disposition of assets shall not be
treated as income, and losses shall not be charged against income unless
appropriate under applicable accounting principles, except in the exercise of
the discretionary powers of the Trustees. Any amount contributed to the
Trust which is received as income pursuant to a decree of any court of
competent jurisdiction shall be applied as required by the said decree.
Section 3. Redemptions. Any Shareholder shall be entitled to
require the Trust to redeem and the Trust shall be obligated to redeem at the
option of such Shareholder all or any part of the Shares owned by said
Shareholder, at the redemption price, pursuant to the method, upon the terms
and subject to the conditions hereinafter set forth:
(a) Certificates for Shares, if issued, shall be presented for
redemption in proper form for transfer to the Trust or the agent of the Trust
appointed for such purpose, and these shall be presented with a written
request that the Trust redeem all or any part of the Shares represented
thereby.
(b) The redemption price per Share shall be the net asset value
per Share when next determined by the Trust at such time or times as the
Trustees shall designate, following the time of presentation of certificates
for Shares, if issued, and an appropriate request for redemption, or such
other time as the Trustees may designate in accordance with any provision of
the 1940 Act, or any rule or regulation made or adopted by any securities
association registered under the Securities Exchange Act of 1934, as
determined by the Trustees.
(c) Net asset value of each series of Shares (for the purpose of
issuance of Shares as well as redemptions thereof) shall be determined by
dividing:
(i) the total value of the assets of such series
determined as provided in paragraph (d) below less, to the
extent determined by or pursuant to the direction of the
Trustees in accordance with generally accepted accounting
principles, all debts, obligations and liabilities of such
series (which debts, obligations and liabilities shall include,
without limitation of the generality of the foregoing, any and
all debts, obligations, liabilities, or claims, of any and
every kind and nature, fixed, accrued and otherwise, including
the estimated accrued expenses of management and supervision,
administration and distribution and any reserves or charges for
any or all of the foregoing, whether for taxes, expenses, or
otherwise, and the price of Shares redeemed but not paid for)
but excluding the Trust's liability upon its Shares and its
surplus, by
(ii) the total number of Shares of such
series outstanding.
The Trustees are empowered, in their absolute discretion, to
establish other methods for determining such net asset value whenever such
other methods are deemed by them to be necessary to enable the Trust to
comply with, or are deemed by them to be desirable, provided they are not
inconsistent with any provision of the 1940 Act.
(d) In determining for the purposes of this Declaration of Trust
the total value of the assets of each series of Shares at any time,
investments and any other assets of such series shall be valued in such
manner as may be determined from time to time by or pursuant to the order of
the Trustees.
(e) Payment of the redemption price by the Trust may be made
either in cash or in securities or other assets at the time owned by the
Trust or partly in cash and partly in securities or other assets at the time
owned by the Trust. The value of any part of such payment to be made in
securities or other assets of the Trust shall be the value employed in
determining the redemption price. Payment of the redemption price shall be
made on or before the seventh day following the day on which the Shares are
properly presented for redemption hereunder, except that delivery of any
securities included in any such payment shall be made as promptly as any
necessary transfers on the books of the issuers whose securities are to be
delivered may be made and, except as postponement of the date of payment may
be permissible under the 1940 Act.
Pursuant to resolution of the Trustees, the Trust may deduct from
the payment made for any Shares redeemed a liquidating charge not in excess
of one percent (1%) of the redemption price of the Shares so redeemed, and
the Trustees may alter or suspend any such liquidating charge from time to
time.
(f) The right of any holder of Shares redeemed by the Trust as
provided in this Article VI to receive dividends or distributions thereon and
all other rights of such Shareholder with respect to such Shares shall
terminate at the time as of which the redemption price of such Shares is
determined, except the right of such Shareholder to receive (i) the
redemption price of such Shares from the Trust in accordance with the
provisions hereof, and (ii) any dividend or distribution to which such
Shareholder previously had become entitled as the record holder of such
Shares on the record date for such dividend or distribution.
(g) Redemption of Shares by the Trust is conditional upon the
Trust having funds or other assets legally available therefor.
(h) The Trust, either directly or through an agent, may
repurchase its Shares, out of funds legally available therefor, upon such
terms and conditions and for such consideration as the Trustees shall deem
advisable, by agreement with the owner at a price not exceeding the net asset
value per Share as determined by or pursuant to the order of the Trustees at
such time or times as the Trustees shall designate, less a charge not to
exceed one percent (1%) of such net asset value, if and as fixed by
resolution of the Trustees from time to time, and to take all other steps
deemed necessary or advisable in connection therewith.
(i) Shares purchased or redeemed by the Trust shall be cancelled
or held by the Trust for reissue, as the Trustees from time to time may
determine.
(j) The obligations set forth in this Article VI may be
suspended or postponed, (1) for any period (i) during which the New York
Stock Exchange is closed other than for customary weekend and holiday
closings, or (ii) during which trading on the New York Stock Exchange is
restricted, (2) for any period during which an emergency exists as a result
of which (i) the disposal by the Trust of investments owned by it is not
reasonably practicable, or (ii) it is not reasonably practicable for the
Trust fairly to determine the value of its net assets, or (3) for such other
periods as the Commission or any successor governmental authority by order
may permit.
Notwithstanding any other provision of this Section 3 of Article
VI, if certificates representing such Shares have been issued, the redemption
or repurchase price need not be paid by the Trust until such certificates are
presented in proper form for transfer to the Trust or the agent of the Trust
appointed for such purpose; however, the redemption or repurchase shall be
effective, in accordance with the resolution of the Trustees, regardless of
whether or not such presentation has been made.
Section 4. Redemptions at the Option of the Trust. The Trust
shall have the right at its option and at any time to redeem Shares of any
Shareholder at the net asset value thereof as determined in accordance with
Section 3 of Article VI of this Declaration of Trust: (i) if at such time
such Shareholder owns fewer Shares than, or Shares having an aggregate net
asset value of less than, an amount determined from time to time by the
Trustees; or (ii) to the extent that such Shareholder owns Shares of a
particular series of Shares equal to or in excess of a percentage of the
outstanding Shares of that series determined from time to time by the
Trustees; or (iii) to the extent that such Shareholder owns Shares of the
Trust representing a percentage equal to or in excess of such percentage of
the
aggregate number of outstanding Shares of the Trust or the aggregate net
asset value of the Trust determined from time to time by the Trustees.
Section 5. Dividends, Distributions, Redemptions and
Repurchases. No dividend or distribution (including, without limitation, any
distribution paid upon termination of the Trust or of any series) with
respect to, nor any redemption or repurchase of, the Shares of any series
shall be effected by the Trust other than from the assets of such series.
ARTICLE VII
Compensation and Limitation of
Liability of Trustees
Section 1. Compensation. The Trustees shall be entitled to
reasonable compensation from the Trust and may fix the amount of their
compensation.
Section 2. Limitation of Liability. The Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any
officer, agent, employee or Manager of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee, but nothing herein
contained shall protect any Trustee against any liability 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.
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 deemed conclusively to have been executed or done only in
their or his capacity as Trustees or Trustee, and such Trustees or Trustee
shall not be personally liable thereon.
ARTICLE VIII
Indemnification
Section 1. Indemnification of Trustees, Officers, Employees and
Agents. Each person who is or was a Trustee, officer, employee or agent of
the Trust shall be entitled to indemnification out of the assets of the Trust
to the extent provided in, and subject to the provisions of, the By-Laws,
provided that no indemnification shall be granted by the Trust in
contravention of the 1940 Act.
Section 2. Merged Corporations. For the purposes of this
Article VIII references to "the Trust" include any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, employees or agents as
well as the resulting or surviving entity; so that any person who is or was a
director, officer, employee or agent of such a constituent corporation or is
or was serving at the request of such a constituent corporation as a trustee,
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise shall stand in the same position
under the provisions of this Article VIII with respect to the resulting or
surviving entity as he would have with respect to such a constituent
corporation if its separate existence had continued.
Section 3. 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 of the Trust to be held
harmless from and indemnified against all losses and expenses arising from
such liability. Upon request, the Trust shall cause its counsel to assume
the defense of any claim which, if successful, would result in an obligation
of the Trust to indemnify the Shareholder as aforesaid.
ARTICLE IX
Status of the Trust and Other General Provisions
Section 1. Trust Not a Partnership. It is hereby expressly
declared that a trust and not a partnership is created hereby. Neither the
Trust nor the Trustees, nor any officer, employee or agent of the Trust shall
have any power to bind personally either the Trust's Trustees or officers or
any Shareholders. All persons extending credit to, contracting with or
having any claim against the Trust or a particular series of Shares shall
look only to the assets of the Trust or the assets of that particular series
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. Nothing in this Declaration of Trust shall protect any Trustee
against any liability to which such Trustee otherwise would be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee
hereunder.
Section 2. Trustee's Good Faith Action, Expert Advice, No Bond
or Surety. The exercise by the Trustees of their powers and discretion
hereunder under the circumstances then prevailing, shall be binding upon
everyone interested. A Trustee shall be liable for his or her own willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and 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 subject to the
provisions of Section 1 of this Article IX shall be under no liability for
any act or omission in accordance with such advice or for failing to follow
such advice. The Trustees shall not be required to give any bond as such,
nor any surety if a bond is required.
Section 3. Liability of Third Persons Dealing with Trustees. No
person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the Trustees
pursuant hereto or to see to the application of any payments made or property
transferred to the Trust or upon its order.
Section 4. Trustees, Shareholders, etc. Not Personally Liable:
Notice. All persons extending credit to, contracting with or having any
claim against the Trust or a particular series of Shares shall look only to
the assets of the Trust or the assets of that particular series of Shares 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.
Section 5. Consolidation, Merger, Sale of Assets.
The Trust may, in accordance with the provisions of this Section:
(1) Consolidate with one or more corporations or
trusts to form a new consolidated corporation or trust; or
(2) Merge into a corporation or trust, or have
merged into it one or more corporations or trusts; or
(3) Sell, lease, exchange or transfer all, or substantially all,
its property and assets, including its good will and franchises.
Any such consolidation, merger, sale, lease, exchange or other
transfer of all or substantially all of the property and assets of the Trust
may be made only upon substantially the terms and conditions set forth in a
proposed form of articles of consolidation, articles of merger or articles of
sale, lease, exchange or transfer, as the case may be, which are approved by
votes of the Trustees and Shareholders holding a majority of the Shares
entitled to vote thereon, provided that in the case of a merger in which the
Trust is the surviving entity which effects no reclassification or change of
any outstanding shares of the Trust or other amendment of this Declaration of
Trust, no vote of the Shareholders shall be necessary (and in lieu thereof,
the proposed articles of merger shall be approved by a majority of the
Trustees) if the number of Shares, if any, of the Trust to be issued or
delivered in the merger does not exceed fifteen percent of the number of
Shares outstanding (before giving effect to the merger) on the effective date
of the merger. Any articles of consolidation, merger, sale, lease, exchange
or transfer shall constitute a supplemental Declaration of Trust, copies of
which shall be filed as specified in Section 7 of this Article IX.
Section 6. Termination of Trust. Unless terminated as provided
herein, the Trust shall continue without limitation of time. The Trust may
he terminated at any time by vote of Shareholders holding at least a majority
of the Shares of each series entitled to vote or by the Trustees by written
notice to the Shareholders. Any series of Shares may be terminated at any
time by vote of Shareholders holding at least a majority of the Shares of
such series entitled to vote or by the Trustees by written notice to the
Shareholders of such series.
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 as may be determined
by the Trustees, the Trust shall reduce, in accordance with such procedures
as the Trustees consider appropriate, the remaining assets to distributable
form in cash or shares 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.
Section 7. Filing of Copies, References, Headings. The original
or a copy of this instrument and of each amendment hereto and of each
Declaration of Trust supplemental 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 such amendment and supplemental Declaration of Trust
shall be filed by the Trust with the Secretary of The Commonwealth of
Massachusetts and the Boston City Clerk, as well as any other governmental
office where such filing may from time to time be required. Anyone dealing
with the Trust may rely on a certificate by an officer of the Trust as to
whether or not any such amendments or supplemental Declarations of Trust have
been made and as to 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
amendment or supplemental Declaration of Trust. In this instrument or in any
such amendment or supplemental Declaration of Trust, references to this
instrument, and all expressions like "herein," "hereof," and "hereunder,"
shall be deemed to refer to this instrument as amended or affected by any
such amendment or supplemental Declaration of Trust. Headings are placed
herein for convenience of reference only and in 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.
Section 8. Applicable Law. The Trust set forth in this
instrument 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.
Section 9. Amendments. 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 a vote of Shareholders holding a
majority of the Shares of each series 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 a majority 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 defective or inconsistent provision contained herein shall
not require authorization by Shareholder vote.
IN WITNESS WHEREOF, Xxxxxx X. Xxxxx has hereunto set his hand and
seal in the City of Boston, Massachusetts, for himself and his assigns as of
the day and year first above written.
/s/ Xxxxxx X. Xxxxx
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, November 6, 1985
Then personally appeared the above-named Xxxxxx X. Xxxxx and
acknowledged the foregoing instrument to be his free act and deed, before me.
/s/ Xxxxxxxx X. Xxxxxxx
Notary Public
My Commission expires: 2/20/92
(Notarial Seal)
