Exhibit 4(a)
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PORTIONS OF THE AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST OF
THE XXXXXX RIVER TRUST
RELATING TO SHAREHOLDERS' RIGHTS
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ARTICLE 3.
SHARES
3.1. Division of Beneficial Interest. The Shares of the Trust shall
be issued with or without par value and 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 Shares of any series may be issued in two or more classes, as
the Trustees may, without Shareholder approval, authorize. Unless the Trustees
have authorized the issuance of Shares of a series in two or more classes,
each Share of a series shall represent an equal proportionate interest in the
assets and liabilities of the series with each other Share of the same series,
none having priority or preference over another. If the Trustees have
authorized the issuance of Shares of a series in two or more classes, then the
classes may have such variations as to dividend, redemption, and voting
rights, net asset values, expenses borne by the classes, and other matters as
the Trustees have authorized. The number of Shares authorized shall be
unlimited. The Trustees may from time to time divide or combine the Shares of
any series or of any class of a series into a greater or lesser number without
thereby changing the proportionate beneficial interests in the series or
class.
3.2. Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust or a transfer or similar agent. No certificates
certifying the ownership of Shares shall be issued except as the Trustees may
otherwise determine from time to time. The Trustees may make such rules as
they consider appropriate for the issuance of Share certificates, the transfer
of Shares and similar matters. The record books of the Trust as kept by the
Trust or any transfer or similar agent, as the case may be, shall be
conclusive as to who are the Shareholders of each series or class and as to
the number of Shares of each series or class held from time to time by each
Shareholder.
3.3. Investment in the Trust. The Trustees shall accept investments
in the Trust from such persons and on such terms and for such consideration,
which may consist of cash or tangible or intangible property or a combination
thereof, as they from time to time authorize.
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 irrevocably belong 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.
3.4. No Preemptive Rights. Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities issued
by the Trust.
3.5. 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 personally any Shareholder,
nor except as specifically provided herein to call upon any Shareholder for
the payment of any sum of money or assessment whatsoever other than such as
the Shareholder may at any time personally agree to pay.
ARTICLE 5.
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Shareholders shall have such power to vote as is provided for in, and
may hold meetings and take actions pursuant to, the provisions of the Bylaws.
ARTICLE 6.
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES
6.1. Distributions. The Trustees may each year, or more frequently if
they so determine, distribute to the Shareholders of each series or class of
Shares such income and capital gains, accrued or realized, as the Trustees may
determine, after providing for actual and accrued expenses and liabilities
(including such reserves as the Trustees may establish) determined in
accordance with good accounting practices. The Trustees shall have full
discretion to determine which items shall be treated as income and which items
as capital and
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their determination shall be binding upon the Shareholders. Distributions of
each year's income of each series or class of Shares shall be distributed pro
rata to Shareholders in proportion to the number of Shares of each series or
class held by each of them. Such distributions shall be made in cash or Shares
or a combination thereof as determined by the Trustees. Any such distribution
paid in Shares will be paid at the net asset value thereof as determined in
accordance with the Bylaws.
6.2. Redemptions and Repurchases. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption, upon the presentation
of any certificate for the Shares to be purchased, a proper instrument of
transfer and a request directed to the Trust or a person designated by the
Trust that the Trust purchase such Shares, or in accordance with such other
procedures for redemption as the Trustees may from time to time authorize, and
the Trust will pay therefor the net asset value thereof, as next determined in
accordance with the Bylaws, less such redemption charge or fee as the Trustees
may determine from time to time. Except as otherwise determined by the
Trustees, payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request is made. The
obligation set forth in this Section 2 is subject to the provision that in the
event that any time the New York Stock Exchange is closed for other than
customary weekends or holidays, or, if permitted by rules of the Commission.
During periods when trading on the Exchange is restricted or during any
emergency which makes it impractical for the Trust to dispose of its
investments or to determine fairly the value of its net assets, or during any
other period permitted by order of the Commission for the protection of
investors, such obligation may be suspended or postponed by the Trustees. The
Trust may also purchase or repurchase Shares at a price not exceeding the net
asset value of such Shares in effect when the purchase or repurchase or any
contract to purchase or repurchase is made.
6.3. 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 the Bylaws: (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 or class of Shares equal to or in excess of a percentage of
the outstanding Shares of that series or class 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.
6.4. 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.
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ARTICLE 8.
INDEMNIFICATION
8.4. Shareholders. In case any Shareholder or former Shareholder
shall be held to be personally liable solely by reason of his or her being or
having been a Shareholder and not because of his or her acts or omissions or
for some other reason, the Shareholder or former Shareholder (or his or her
heirs, executors, administrators or other legal representatives or in the case
of a corporation or other entity, its corporate or other general successor)
shall be entitled to be held harmless from and indemnified against all loss
and expense arising from such liability, but only out of the assets of the
particular series of Shares of which he or she is or was a Shareholder.
ARTICLE 9.
MISCELLANEOUS
9.1. 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. Nothing in this Declaration of
Trust shall protect any Trustee against any liability to which such Trustees
would otherwise be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking
made or issued by the Trustees or by any officer or officers shall give notice
that this Declaration of Trust is on file with the Secretary of The
Commonwealth of Massachusetts and shall recite that the same was executed or
made by or on behalf of the Trust or by them as Trustee or Trustees or as
officers or officer and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders individually
but are binding only upon the assets and property of the Trust, and may
contain such further recitals as he or she or they may deem appropriate, but
the omission thereof shall not operate to bind any Trustee or Trustees or
officer of officers or Shareholder or Shareholders individually.
9.7. 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 to do so by 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
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majority of the Shares entitled to vote of each series affected and no vote of
Shareholders of a series not affected shall be required. Any amendment which
shall affect the holders of Shares of one or more classes of a series but not
the holders of all Shares of a series shall be authorized by vote of the
Shareholders holding a majority of the Shares of such classes affected by the
amendment voting together as a single class, and no vote of Shareholders of
the classes not affected shall be required. Amendments having the purpose of
changing the name of the Trust, of establishing, changing, or eliminating the
par value of the shares 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
addition to the foregoing, the provisions of this Declaration of Trust may be
amended for any other reason at any time without the vote or consent of
Shareholders, so long as such amendment does not materially adversely affect
the rights of any Shareholder with respect to which such amendment is or
purports to be applicable and so long as such amendment is not in
contravention of applicable law, including the 1940 Act, by an instrument
signed in writing by a majority of the Trustees (or by an officer of the Trust
pursuant to a vote of a majority of Trustees).
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