XXXXXXX INVESTMENT FUNDS
AMENDED AND RESTATED
MASTER TRUST AGREEMENT
October 1, 2008
ARTICLE I. NAME AND DEFINITIONS 2
Section 1.1 Name 2
Section 1.2 Definitions 2
(a) Agreement 2
(b) By-Laws 2
(c) Classes 2
(d) Commission 2
(e) Declaration of Trust 2
(f) Distribution Plan 2
(g) Interested Person 2
(h) Shareholder 2
(i) Shareholder Services Plan 2
(j) Shares 2
(k) Sub-Trust or Series 3
(l) Trust 3
(m) Trustee Xxxxxxxx 0
(x) Xxxxxxxx 0
(x) 0000 Xxx 3
ARTICLE II. PURPOSE OF TRUST 3
ARTICLE III. THE TRUSTEES 3
Section 3.1 Number, Designation, Election, Term, etc. 3
(a) [Reserved] 3
(b) Number 3
(c) Election and Term 3
(d) Resignation and Retirement 4
(e) Removal 4
(f) Vacancies 4
(g) Effect of Death, Resignation, etc. 4
(h) No Accounting 4
(i) Trustee Emeritus 5
Section 3.2 Powers of Trustees 5
(a) Investments 6
(b) Disposition of Assets 6
(c) Ownership Powers 6
(d) Subscription 6
(e) Form of Holding 7
(f) Reorganization, etc. 7
(g) Voting Trusts, etc. 7
(h) Compromise 7
(i) Partnerships, etc. 7
(j) Borrowing and Security 7
(k) Guarantees, etc. 7
(l) Insurance 7
(m) Pensions, etc. 8
(n) Resident Agent 8
Section 3.3 Certain Contracts 8
(a) Advisory and Sub-Advisory 8
(b) Administration 8
(c) Distribution 8
(d) Custodian and Depositary 9
(e) Transfer and Dividend Disbursing Agency 9
(f) Shareholder Servicing 9
(g) Accounting 9
Section 3.4 Payment of Trust Expenses and Compensation of Trustees 10
Section 3.5 Ownership of Assets of the Trust 10
ARTICLE IV. SHARES 10
Section 4.1 Description of Shares 10
Section 4.2 Establishment and Designation of Sub-Trusts 11
(a) Assets Belonging to Sub-Trusts 12
(b) Liabilities Belonging to Sub-Trusts 12
(c) Dividends 13
(d) Liquidation and Termination 13
(e) Voting 14
(f) Redemption by Shareholder 14
(g) Redemption by Trust 15
(h) Net Asset Value 15
(i) Transfer 15
(j) Equality 16
(k) Fractions 16
(l) Conversion Rights 16
Section 4.3 Ownership of Shares 16
Section 4.4 Investments in the Trust 16
Section 4.5 No Pre-emptive Rights 17
Section 4.6 Status of Shares and Limitation of Personal Liability 17
Section 4.7 No Appraisal Rights 17
ARTICLE V. SHAREHOLDERS VOTING POWERS AND MEETINGS 17
Section 5.1 Voting Powers 17
Section 5.2 Meetings 18
Section 5.3 Record Dates 18
Section 5.4 Quorum and Required Vote 19
Section 5.5 Action by Written Consent 19
Section 5.6 Inspection of Records 19
Section 5.7 Additional Provisions 19
Section 5.8 Shareholder Communications 19
ARTICLE VI. LIMITATION OF LIABILITY INDEMNIFICATION 20
Section 6.1 Trustees, Trustees Emeritus, Shareholders, etc. Not Personally
Liable Notice 20
Section 6.2 Trustees/Trustees Emeritus Good Faith Action Expert Advice No
Bond or Surety 21
Section 6.3 Indemnification of Shareholders 21
Section 6.4 Indemnification of Trustees, Trustees Emeritus, Officers,
etc. 21
Section 6.5 Compromise Payment 22
Section 6.6 Indemnification Not Exclusive, etc. 22
Section 6.7 Liability of Third Persons Dealing with Trustees 23
ARTICLE VII. MISCELLANEOUS 23
Section 7.1 Duration and Termination of Trust 23
Section 7.2 Reorganization 23
Section 7.3 Amendments 24
Section 7.4 Filing of Copies References Headings 25
Section 7.5 Applicable Law 25
XXXXXXX INVESTMENT FUNDS
AMENDED AND RESTATED
MASTER TRUST AGREEMENT
AMENDED AND RESTATED MASTER TRUST AGREEMENT AND DECLARATION OF TRUST made at
Tacoma, Washington this 1st day of October, 2008, by the Trustees hereunder.
WITNESSETH
WHEREAS this Trust has been formed to carry on the business of an investment
company and
WHEREAS this Trust is authorized to issue its shares of beneficial interest
in separate series, each separate series to be a Sub-Trust hereunder, all in
accordance with the provisions hereinafter set forth and
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 and
WHEREAS the Trust was established pursuant to a Master Trust Agreement dated
as of July 11, 1996 (the Original Agreement) and
WHEREAS there are 12 amendments to the Original Agreement and
WHEREAS the Trustees desire to amend and restate the Original Agreement to
incorporate each of the 12 amendments to the Original Agreement and to
further amend the Original Agreement (the Original Agreement together with
such amendments, the Amended and Restated Agreement).
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 benefit of the holders from time
to time of shares of beneficial interest in this Trust or Sub-Trusts created
hereunder as hereinafter set forth.
NAME AND DEFINITIONS
Name. This Trust shall be known as XXXXXXX INVESTMENT FUNDS and the Trustees
shall conduct the business of the Trust under that name or any other name or
names as they may from time to time determine. Notwithstanding the foregoing,
the Trust expressly acknowledges and agrees that if Xxxxx Xxxxxxx Company, a
corporation organized and existing under the laws of the State of Washington,
or any of its corporate affiliates, no longer serves as investment adviser to
the Trust, the Trust will immediately take all action necessary to change
its name to delete any reference to Xxxxx Xxxxxxx or Xxxxxxx.
Definitions. Whenever used herein, unless otherwise required by the context
or specifically provided
Agreement means this Amended and Restated Master Trust Agreement and
Declaration of Trust as amended or restated from time to time
By-Laws shall mean the By-Laws of the Trust, as amended or restated from time
to time
Classes shall mean a sub-division of the Trust, established by this Agreement
or by action of the Trustees, consisting of a portion of the Shares of a
Series or Sub-Trust, provided that all Shares of a Sub-Trust shall have a
proportionate undivided interest in the assets of such Sub-Trust as determined
in accordance with the rights and preferences established as to each such
Class Commission shall have the meaning given it in the 1940 Act Declaration
of Trust shall mean this Amended and Restated Master Trust Agreement and
Declaration of Trust as amended or restated from time to time
Distribution Plan refers to a plan adopted in accordance with Rule 12b-1
of the 1940 Act Interested Person shall have the meaning given to it in the
1940 Act
Shareholder means a record owner of Shares Shareholder Services Plan
shall mean the Shareholder Services Plan of the Trust as amended from time to
time Shares refers to the transferable units of interest into which the
beneficial interest in the Trust and each Sub-Trust of the Trust (as the
context may require) shall be divided from time to time Sub-Trust or Series
refers to Series of Shares established and designated under or in accordance
with the provisions of Article IV, each of which Series shall be a Sub-Trust
of the Trust
The Trust refers to the Massachusetts business trust established by this
Agreement and Declaration of Trust, as amended from time to time, inclusive
of each and every Sub-Trust established hereunder
Trustee Emeritus refers to each person elected to that office from time to
time by the Trustees of the Trust, and serving as same
Trustees refers to the Trustees of the Trust and of each Sub-Trust hereunder
named herein or elected in accordance with Article III but does not include
Trustees Emeritus and
The 1940 Act refers to the Investment Company Act of 1940 or any successor
statute enacted by Congress and the Rules and Regulations thereunder or
exemptive orders issued thereunder which are applicable to the Trust, all
as amended from time to time.
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Shareholders of the Trust and each Sub-Trust of the Trust one or
more investment vehicles investing primarily in securities and other
financial instruments.
THE TRUSTEES
Number, Designation, Election, Term, etc.
[Reserved].
Number. The Trustees serving as such, whether currently a Trustee or
hereafter becoming a Trustee, may increase or decrease the number of
Trustees to a number other than the number previously determined. No decrease
in the number of Trustees shall have the effect of removing any Trustee from
office prior to the expiration of such Trustees term, but the number of
Trustees may be decreased in conjunction with the removal of a Trustee
pursuant to subsection (e) of this Section 3.1.
Election and Term. Each Trustee, whether currently a Trustee or hereafter
becoming a Trustee, shall serve as a Trustee of the Trust and of each
Sub-Trust hereunder during the lifetime of this Trust and until its
termination as hereinafter provided except as such Trustee sooner dies,
retires, resigns or is removed. Subject to Section 16(a) of the 1940 Act,
the Trustees may elect their own successors, designate new and additional
Trustees, and may, pursuant to Section 3.1(f) hereof, appoint Trustees to
fill vacancies.
Resignation and Retirement. Any Trustee may resign his or her trust or
retire as a Trustee, by written instrument signed by him or her and delivered
to the other Trustees or to any officer of the Trust and such resignation or
retirement shall take effect upon such delivery or upon such later date as is
specified in such instrument and shall be effective as to the Trust and each
Sub-Trust hereunder. Notwithstanding the foregoing, a retirement by a Trustee
required by or in accordance with any policy approved and adopted by a
majority of the Trustees with respect to retirements of Trustees (including,
but not limited to, any policy providing for mandatory retirement of Trustees
upon their attainment of a specified age) shall be governed by and take effect
in accordance with such policy and shall be effective as to the Trust and each
Sub-Trust.
Removal. Any Trustee may be removed with or without cause at any time
by written instrument, signed by at least two-thirds of the number of Trustees
prior to such removal, specifying the date upon which such removal shall
become effective or by vote of shareholders holding not less than
two-thirds of the Shares then outstanding, cast in person or by proxy at
any meeting called for the purpose, specifying the date upon which such
removal shall become effective or by a written declaration signed by
Shareholders holding not less than two-thirds of the Shares then outstanding,
and such declaration shall become effective when filed with the Trusts
Secretary. Any such removal shall be effective as to the Trust and each
Sub-Trust hereunder.
Vacancies. Any vacancy or anticipated vacancy resulting from any reason,
including without limitation the death, resignation, retirement, removal or
incapacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees, may (but need not, unless required
by the 0000 Xxx) be filled by a majority of the remaining Trustees, subject
to the provisions of Section 16(a) of the 1940 Act, through the appointment
in writing of such other person as such remaining Trustees in their discretion
shall determine, and such appointment shall be effective upon the written
acceptance of the person named therein to serve as a Trustee and agreement
by such person to be bound by the provisions of this Declaration of Trust,
except that any such appointment in anticipation of a vacancy to occur by
reason of retirement, resignation, or increase in number of Trustees to be
effective at a later date shall become effective only at or after the
effective date of said retirement, resignation, or increase in number of
Trustees. As soon as any Trustee so appointed shall have accepted such
appointment and shall have agreed in writing to be bound by this Declaration
of Trust and the appointment is effective, the Trust estate shall vest in
the new Trustee, together with the continuing Trustees, without any further
act or conveyance.
Effect of Death, Resignation, etc. The death, resignation, retirement,
removal, or incapacity of the Trustees, or any one of them, shall not operate
to annul or terminate the Trust or any Sub-Trust hereunder or to revoke or
terminate any existing agency or contract created or entered into pursuant
to the terms of this Declaration of Trust.
No Accounting. Except to the extent required by the 1940 Act or under
circumstances which would justify the Trustees removal for cause, no person
ceasing to be a Trustee as a result of the Trustees death, resignation,
retirement, removal or incapacity (nor the estate of any such person) shall
be required to make an accounting to the Shareholders or remaining Trustees
upon such cessation.
Trustee Emeritus. Any natural person qualified to hold the office of
Trustee under this Agreement who is not then a Trustee may be elected by a
majority of the Trustees then in office to serve as Trustee Emeritus for a
period of one year from the date of election, or such other term as may be
specified by the Board. A Trustee Emeritus shall be subject to removal by
the Board from time to time with or without cause. A Trustee Emeritus shall
be given notice of each meeting of the Board of Trustees in the same manner
as each regular Trustee then in office (provided that no failure to give or
to receive such notice of a meeting shall affect the status of the meeting
as having been duly called and held or the validity of any action taken by
the regular Trustees at the meeting), shall be entitled to attend each
meeting of the Board, and shall be provided with access to such records of
the Trust as are made available to each Trustee. Notwithstanding the
foregoing, no Trustee Emeritus may vote at any meeting of the Board, or of
any committee of the Board, or direct the vote of any Trustee at same. A
Trustee Emeritus shall not be held responsible by virtue of service as a
Trustee Emeritus, either at law or in equity, for any action or failure to
act of the Trust, or of the Board of Trustees or any committee thereof. A
Trustee Emeritus who is not an Interested Person of the Trust may receive
such fees and reimbursement of expenses as are authorized for payment to
each Trustee who is not an Interested Person of the Trust.
Powers of Trustees. Except as otherwise provided by the 1940 Act or other
applicable law, this Declaration of Trust or the By-Laws, any action to be
taken by the Trustees on behalf of the Trust or any Sub-Trust may be taken
by a majority of the Trustees present at a meeting of Trustees (a quorum,
consisting of at least a majority of the Trustees then in office, being
present), within or without Massachusetts, including any meeting held by
means of a conference telephone or other communications equipment by means
of which all persons participating in the meeting can hear each other at
the same time and participation by such means shall constitute presence in
person at a meeting, or by written consents of a majority of the Trustees
then in office (or such larger or different number as may be required by
the 1940 Act or other applicable law).
To the fullest extent permitted by applicable law, except as the Trustees
may otherwise determine (a) any requirements in this Declaration of Trust
or in the By-Laws that any action be taken by means of any writing,
including, without limitation, any written instrument, any written consent
or any written agreement, shall be deemed to be satisfied by means of any
electronic record in such form that capable of conversion into a written
form within a reasonable time and (b) any requirements in this Declaration
of Trust or in the By-Laws that any writing be signed shall be deemed to be
satisfied by any electronic signature.
Subject to the provisions of this Declaration of Trust, the business
of the Trust shall be managed by the Trustees, and they shall have all
powers necessary or convenient to carry out that responsibility and the
purpose of the Trust. Without limiting the foregoing, the Trustees may adopt
By-Laws not inconsistent with this Declaration of Trust providing for the
conduct of the business and affairs of the Trust and may amend and repeal
them to the extent that such By-Laws do not reserve that right to the
Shareholders they may from time to time in accordance with the provisions
of Section 4.2 hereof establish SubTrusts and Classes of Subtrusts,
each such Sub-Trust to operate as a separate and distinct investment medium
and with separately defined investment objectives and policies and distinct
investment purpose they may as they consider appropriate elect and remove
officers and appoint and terminate agents and consultants and hire and
terminate employees, any one or more of the foregoing of whom may be a
Trustee, and may provide for the compensation of all of the foregoing they
may appoint from their own number, and terminate, any one or more committees
consisting of two or more Trustees, including without implied limitation an
executive committee, which may, when the Trustees are not in session and
subject to the 1940 Act, exercise some or all of the power and authority of
the Trustees as the Trustees may determine in accordance with the By-Laws,
they may appoint from their own number, and terminate, a Chairman for the
purpose of presiding at meetings of the Board of Trustees and exercising
and performing such other powers and duties as the Board may determine in
accordance with Section 3.3 they may employ one or more advisers,
administrators, depositaries and custodians and may authorize any depositary
or custodian to employ subcustodians or agents and to deposit all or any
part of such assets in a system or systems for the central handling of
securities and debt instruments, retain transfer, dividend, accounting or
Shareholder servicing agents or any of the foregoing, provide for the
distribution of Shares by the Trust through one or more distributors,
principal underwriters or otherwise, set record dates or times for the
determination of Shareholders or various of them with respect to various
matters they may compensate or provide for the compensation of the Trustees,
officers, advisers, administrators, custodians, other agents, consultants
and employees of the Trust or the Trustees on such terms as they deem
appropriate and, in general they may delegate to any Chairman, to any officer
of the Trust, to any committee of the Trustees and to any employee, adviser,
administrator, distributor, depositary, custodian, transfer and dividend
disbursing agent, or any other agent or consultant of the Trust such
authority, powers, functions and duties as they consider desirable or
appropriate for the conduct of the business and affairs of the Trust,
including without implied limitation the power and authority to act in the
name of the Trust and of the Trustees, to sign documents and to act as
attorney-in-fact for the Trustees. In construing the provisions of this
Declaration of Trust, the presumption shall be in favor of a grant of power
to the Trustees.
Without limiting the foregoing and to the extent not inconsistent with the
1940 Act or other applicable law, the Trustees shall have the following
power and authority for and on behalf of the Trust and each separate Sub-Trust
established hereunder
Investments. To invest and reinvest cash and other property, and to hold
cash or other property uninvested without in any event being bound or
limited by any present or future law or custom in regard to investments by
Trustees
Disposition of Assets. To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of the Trust
Ownership Powers. To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt instruments 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, debt
instruments or property as the Trustees shall deem proper
Subscription. To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities or debt instruments
Form of Holding. To hold any security, debt instrument 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 of any
Sub-Trust or in the name of a custodian, subcustodian or other depositary
or a nominee or nominees or otherwise
Reorganization, etc. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security or debt instrument of which is or was held in the Trust to consent
to any contract, lease, mortgage, purchase or sale of property by such
corporation or issuer, and to pay calls or subscriptions with respect to
any security or debt instrument held in the Trust
Voting Trusts, etc. To join with other holders of any securities or debt
instruments in acting through a committee, depositary, voting trustee or
otherwise, and in that connection to deposit any security or debt
instrument with, or transfer any security or debt instrument to, any such
committee, depositary or trustee, and to delegate to them such power and
authority with relation to any security or debt instrument (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
Compromise. To compromise, arbitrate or otherwise adjust claims in favor
of or against the Trust or any Sub-Trust on any matter in controversy,
including but not limited to claims for taxes
Partnerships, etc. To enter into joint ventures, general or limited
partnerships and any other combinations or associations
Borrowing and Security. To borrow funds and to mortgage and pledge the
assets of the Trust or any Sub-Trust or any part thereof to secure obligations
arising in connection with such borrowing
Guarantees, etc. To endorse or guarantee the payment of any notes or other
obligations of any person to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof and to mortgage and pledge the
Trust property (or Sub-Trust property) or any part thereof to secure any of
or all such obligations
Insurance. 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, Trustees Emeritus, officers, employees, agents, consultants,
investment advisers, managers, administrators, distributors, principal
underwriters, or independent contractors, or any thereof (or any person
connected therewith), 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 in any such capacity, 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 Pensions, etc. 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, trust 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, Trustees Emeritus, officers, employees and agents of the Trust and
Resident Agent. To appoint CT Corporation System, located at 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, as the Trusts resident agent
in the Commonwealth of Massachusetts and to appoint any successor or
additional resident agent in the Commonwealth of Massachusetts.
Certain Contracts. Subject to compliance with the provisions of the 1940
Act, but notwithstanding any limitations of present and future law or custom
in regard to delegation of powers by trustees generally, the Trustees may,
at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into one or
more contracts with any one or more corporations, trusts, associations,
partnerships, limited partnerships, other types of organizations, or
individuals (Contracting Party), to provide for the performance and
assumption of some or all of the following services, duties and
responsibilities to, for or on behalf of the Trust and/or any Sub-Trust,
and/or the Trustees, and to provide for the performance and assumption
of such other services, duties and responsibilities in addition to those
set forth below as the Trustees may determine appropriate, and to authorize
such Contracting Party to employ or retain any one or more corporations,
trusts, associations, partnerships, limited partnerships, other types of
organizations, or individuals to provide to the Trust or to the Contracting
Party such services
Advisory and Sub-Advisory. Subject to the general supervision of the
Trustees and in conformity with the stated policy of the Trustees with
respect to the investments of the Trust or of the assets belonging to any
Sub-Trust of the Trust (as that phrase is defined in subsection (a) of
Section 4.2), to appoint an adviser and sub-advisers to manage such investments
and assets, make investment decisions with respect thereto, and to place
purchase and sale orders for portfolio transactions relating to such
investments and assets
Administration. Subject to the general supervision of the Trustees and in
conformity with any policies of the Trustees with respect to the operations
of the Trust and each Sub-Trust, to supervise all or any part of the
operations of the Trust and each Sub-Trust, and to provide all or any part
of the administrative and clerical personnel, office space and office
equipment and services appropriate for the efficient administration and
operations of the Trust and each Sub-Trust
Distribution. To distribute the Shares of the Trust and each Sub-Trust, to be
principal underwriter of such Shares, and/or to act as agent of the Trust and
each Sub-Trust in the sale of Shares and the acceptance or rejection of orders
for the purchase of Shares
Custodian and Depositary. To act as depositary for and to maintain custody of
the property of the Trust and each Sub-Trust and accounting records in
connection therewith
Transfer and Dividend Disbursing Agency. To maintain records of the ownership
of outstanding Shares, the issuance and redemption and the transfer thereof,
and to disburse any dividends declared by the Trustees and in accordance with
the policies of the Trustees and/or the instructions of any particular
Shareholder to reinvest any such dividends
Shareholder Servicing. To provide service with respect to the relationship of
the Trust and its Shareholders, records with respect to Shareholders and their
Shares, and similar matters and
Accounting. To handle all or any part of the accounting responsibilities,
whether with respect to the Trusts properties, Shareholders or otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or
in addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing herein
shall preclude, prevent or limit the Trust or a Contracting Party from
entering into sub-contractual arrangements relative to any of the matters
referred to in Sections 3.3(a) through (g) hereof.
The fact that any of the Shareholders, Trustees or officers of the Trust is
a shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party, or of or for any parent or affiliate of any Contracting
Party or that the Contracting Party or any parent or affiliate thereof is a
Shareholder or has an interest in the Trust or any Sub-Trust, or that
any Contracting Party may have a contract providing for the rendering of any
similar services to one or more other corporations, trusts, associations,
partnerships, limited partnerships or other organizations, or have other
business or interests,shall not affect the validity of any contract for the
performance and assumption of services, duties and responsibilities to, for
or of the Trust or any Sub-Trust and/or the Trustees or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust, any Sub-Trust or
its Shareholders, provided that in the case of any relationship or interest
referred to in the preceding clause (i) on the part of any Trustee or officer
of the Trust either (x) the material facts as to such relationship or interest
have been disclosed to or are known by the Trustees not having any such
relationship or interest and the contract involved is approved in good faith
by a majority of such Trustees not having any such relationship or interest
(even though such unrelated or disinterested Trustees are less than a quorum
of all of the Trustees), (y) the material facts as to such relationship or
interest and as to the contract have been disclosed to or are known by the
Shareholders entitled to vote thereon and the contract involved is
specifically approved in good faith by vote of the Shareholders, or (z) the
specific contract involved is fair to the Trust as of the time it is
authorized, approved or ratified by the Trustees or by the Shareholders.
Payment of Trust Expenses and Compensation of Trustees. The Trustees are
authorized to pay or to cause to be paid out of the principal or income of
the Trust or any Sub-Trust, or partly out of principal and partly out of
income, and to charge or allocate the same to, between or among such one or
more of the Sub-Trusts that may be established and designated pursuant to
Article IV, as the Trustees deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust or any Sub-Trust,
or in connection with the management thereof, including, but not limited to,
the Trustees compensation and such expenses and charges for the services of
the Trusts officers, employees, investment adviser, administrator,
distributor, principal underwriter, auditor, counsel, depositary, custodian,
transfer agent, dividend disbursing agent, accounting agent, shareholder
servicing agent, and such other agents, consultants, and independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur. Without limiting the generality of any other
provision hereof, the Trustees shall be entitled to reasonable compensation
from the Trust for their services as Trustees and may fix the amount of such
compensation.
Ownership of Assets of the Trust. Title to all of the assets of the Trust
shall at all times be considered as vested in the Trustees then serving in
office.
SHARES
Description of Shares. The beneficial interest in the Trust shall be divided
into Shares, all at $.01 par value, but the Trustees shall have the authority
from time to time to divide the Shares into two or more Series of Shares
(each of which Series of Shares shall be a separate and distinct Sub-Trust
of the Trust, including without limitation those Sub-Trusts specifically
established and designated in Section 4.2), as they deem necessary or
desirable. Each Sub-Trust established hereunder shall be deemed to be a
separate trust under Massachusetts General Laws Chapter 182. The Trustees
shall have exclusive power without the requirement of shareholder approval
to establish and designate such separate and distinct Sub-Trusts, and to
fix and determine the relative rights and preferences as between the shares
of the separate Sub-Trusts as to right of redemption and the price, terms
and manner of redemption, special and relative rights as to dividends and
other distributions and on liquidation, sinking or purchase fund provisions,
conversion rights, and conditions under which the several Sub-Trusts shall
have separate voting rights or no voting rights.
The number of authorized Shares and the number of Shares of each Sub-Trust
and Class that may be issued is unlimited, and the Trustees may issue Shares
of any Sub-Trust and Class for such consideration and on such terms as they
may determine (or for no consideration if pursuant to a Share dividend or
split-up), all without action or approval of the Shareholders. All Shares
when so issued on the terms determined by the Trustees shall be fully paid
and nonassessable (but may be subject to mandatory contribution back to the
Trust as provided in subsection (h) of Section 4.2). The Trustees may classify
or reclassify any unissued Shares or any Shares previously issued and
reacquired of any Sub-Trust into one or more Sub-Trusts or Class that may be
established and designated from time to time. The Trustees may hold as
treasury Shares, reissue for such consideration and on such terms as they may
determine, or cancel, at their discretion from time to time, any Shares of
any Sub-Trust or Class reacquired by the Trust.
In addition, the Trustees shall have the exclusive power, with or without
Shareholder approval, to establish and designate, and to issue by Classes,
Shares of any Sub-Trust or to divide the Shares of any Sub-Trust into Classes,
each Class having such different dividend, liquidation, voting, and other
rights as the Trustees may determine in their sole discretion. The fact that
Shares of a Sub-Trust shall have been issued without the designation of any
Classes of such Sub-Trust, or of any specific Class of such Sub-Trust, shall
not limit the authority of the Trustees to establish and designate such
Shares as a Class, or to establish and designate one or more Classes or
additional Classes, without the approval of Shareholders of such Sub-Trust,
provided that the establishment and designation of any Class of a Sub-Trust
shall not materially adversely affect the rights of any existing Shareholder.
The Trustees may from time to time close the transfer books or establish
record dates and times for the purposes of determining the holders of Shares
entitled to be treated as such, to the extent provided or referred to in
Section 5.3.
The establishment and designation of any Sub-Trust or Class of Sub-Trust in
addition to those established and designated in Section 4.2, shall be
effective upon the execution by a majority of the then Trustees of an
instrument setting forth such establishment and designation and the relative
rights and preferences of the Shares of such Sub-Trust or Class, or as
otherwise provided in such instrument. At any time that there are no Shares
outstanding of any particular Sub-Trust or Class previously established and
designated, the Trustees may, by an instrument executed by a majority of
their number, abolish that Sub-Trust or Class and the establishment and
designation thereof. Each instrument referred to in this paragraph shall
have the status of an amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such person is interested, may acquire, own, hold and dispose of
Shares of any Sub-Trust of the Trust to the same extent as if such person
were not a Trustee, officer or other agent of the Trust and the Trust may
issue and sell or cause to be issued and sold and may purchase Shares of
any Sub-Trust and Class from any such person or any such organization
subject only to the general limitations, restrictions or other provisions
applicable to the sale or purchase of Shares of such Sub-Trust and Class
generally.
Establishment and Designation of Sub-Trusts. Without limiting the authority
of the Trustees set forth in Section 4.1 to establish and designate any
further Sub-Trusts, the Trustees hereby establish and designate the following
Sub-Trusts
Multi-Style Equity Fund
Aggressive Equity Fund
Non-U.S. Fund
Core Bond Fund
Real Estate Securities Fund
Conservative Strategy Fund
Moderate Strategy Fund
Balanced Strategy Fund
Growth Strategy Fund
Equity Growth Strategy Fund
Shares of the above-referenced Sub-Trusts and any Shares of any further
Sub-Trusts that may from time to time be established and designated by the
Trustees shall (unless the Trustees otherwise determine with respect to
some further Sub-Trust at the time of establishing and designating the same)
have the following relative rights and preferences, and the power of the
Trustees to establish relative rights and preferences of Sub-Trusts pursuant
to this Section 4.2 shall not detract from or limit the power of the Trustees
under Section 4.1 to determine and set the relative rights and preferences of
any Class thereof
Assets Belonging to Sub-Trusts. All consideration received by the Trust for
the issue or sale of Shares of a particular Sub-Trust, together with all
assets in which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof, including any proceeds derived from
the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may
be, shall be held by the Trustees in trust for the benefit of the holders of
Shares of that Sub-Trust and shall irrevocably belong to that Sub-Trust for
all purposes, and shall be so recorded upon the books of account of the
Trust. Such consideration, assets, income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of
such proceeds, in whatever form the same may be, together with any General
Items (as hereinafter defined) allocated to that Sub-Trust as provided in the
following sentence, are herein referred to as assets belonging to that
Sub-Trust. In the event that there are any assets, income, earnings, profits,
and proceeds thereof, funds, or payments which are not readily identifiable
as belonging to any particular Sub-Trust (collectively General Items), the
Trustees shall allocate such General Items to and among any one or more of
the Sub-Trusts established and designated from time to time in such manner
and on such basis as they, in their sole discretion, deem fair and equitable
and any General Items so allocated to a particular Sub-Trust shall belong to
that Sub-Trust. Each such allocation by the Trustees shall be conclusive and
binding upon the Shareholders of all Sub-Trusts for all purposes.
Liabilities Belonging to Sub-Trusts. The assets belonging to each particular
Sub-Trust shall be charged with the liabilities in respect of that Sub-Trust
and all expenses, costs, charges and reserves attributable to that Sub-Trust,
and any general liabilities, expenses, costs, charges or reserves of the Trust
which are not readily identifiable as belonging to any particular Sub-Trust
shall be allocated and charged by the Trustees to and among any one or more of
the Sub-Trusts established and designated from time to time in such manner
and on such basis as the Trustees in their sole discretion deem fair and
equitable. The liabilities, expenses, costs, charges and reserves allocated
and so charged to a Sub-Trust are herein referred to as liabilities belonging
to that Sub-Trust. Each allocation of liabilities, expenses, costs, charges
and reserves by the Trustees shall be conclusive and binding upon the
Shareholders of all Sub-Trusts for all purposes. Any creditor of any
Sub-Trust may look only to the assets of that Sub-Trust to satisfy such
creditors debt.
The Trustees shall have full discretion, to the extent not inconsistent with
the 1940 Act, to determine which items shall be treated as income and which
items as capital and each such determination and allocation shall be
conclusive and binding upon the Shareholders.
Dividends. Dividends and distributions on Shares of a particular Sub-Trust
or Class thereof may be paid with such frequency as the Trustees may
determine, which may be daily or otherwise pursuant to a standing resolution
or resolutions adopted only once or with such frequency as the Trustees may
determine, to the holders of Shares of that Sub-Trust or Class thereof.
Dividends and distributions on Shares of a particular Sub-Trust may be paid
from such of the income and capital gains, accrued or realized, from the
assets belonging to that Sub-Trust, as the Trustees may determine, after
providing for actual and accrued liabilities belonging to that Sub-Trust.
All dividends and distributions on Shares of a particular Sub-Trust shall be
distributed pro rata to the holders of Shares of Series or Classes of that
Sub-Trust designated by the Trustees in proportion to the number of Shares
of that Sub-Trust held by such holders at the date and time of record
established for the payment of such dividends or distributions, except that
in connection with any dividend or distribution program or procedure the
Trustees may determine that no dividend or distribution shall be payable
on Shares as to which the Shareholders purchase order and/or payment have
not been received by the time or times established by the Trustees under such
program or procedure. Such dividends and distributions may be made in cash or
Shares of that Sub-Trust or a combination thereof as determined by the
Trustees or pursuant to any program that the Trustees may have in effect at
the time for the election by each Shareholder of the mode of the making of
such dividend or distribution to that Shareholder. Any such dividend or
distribution paid in Shares will be paid at the net asset value thereof as
determined in accordance with subsection (h) of Section 4.2.
Liquidation and Termination. (1) The Trustees may, without the affirmative
vote of a majority of the outstanding voting Shares (as defined in the 0000
Xxx) of the Trust or Sub-Trust, by vote of a majority of the Trustees or
written instrument executed by a majority of their number then in office,
terminate any Sub-Trust of the Trust, or any Class of any such Sub-Trust
at any time by written notice to affected Shareholders of a termination
effected under this Section 4.2(d).
Upon the termination of the Trust or any Sub-Trust of the Trust
The Trust or Sub-Trust of the Trust shall carry on no business
except for the purpose of winding up its affairs
The Trustees shall proceed to wind up the affairs of the Trust
or Sub-Trust and all the powers of the Trustees under this Agreement shall
continue until the affairs of the Trust or Sub-Trust shall have been wound
up, including the power to fulfill or discharge the contracts of the Trust
or Sub-Trust, collect its assets, sell, convey, assign, exchange, transfer
or otherwise dispose of all or any part of the remaining assets of the
Sub-Trust to one or more persons at public or private sale for consideration
which may consist in whole or in part of cash, securities or other property
of any kind, discharge or pay its liabilities, and to do all other acts
appropriate to liquidate its business and
After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and refunding
agreements as they deem necessary for their protection, the Trustees may
distribute the remaining assets of the Trust or Sub-Trust, in cash or in
kind or partly in cash and partly in kind, among the Shareholders of the
Trust or the Sub-Trust according to their respective rights. The assets so
distributable to the Shareholders of any particular Sub-Trust shall be
distributed among such Shareholders in proportion to the number of Shares of
that Sub-Trust held by them and recorded on the books of the Trust, adjusted
for such distinctions between Shares of Classes of a Sub-Trust as the
Trustees, in their discretion, deem just and equitable.
The foregoing provisions shall also apply, with appropriate modifications
as determined by the Trustees, to the termination of any Class of any Sub-Trust.
(2) After termination of the Trust or Sub-Trust or Class and distribution
to the Shareholders of the Trust or Sub-Trust or Class as herein provided, the
Trustees shall thereupon be discharged from all further liabilities and duties
hereunder with respect to the Trust or Sub-Trust or Class, and the rights and
interests of all Shareholders of the Trust or Sub-Trust or Class shall
thereupon cease.
Voting. On each matter submitted to a vote of the Shareholders, each holder of
a Share of each Sub-Trust shall be entitled to one vote for each whole Share
and to a proportionate fractional vote for each fractional Share standing in
his name on the books of the Trust and all Shares of each Sub-Trust entitled
to vote shall vote as a separate class except as otherwise required by the
1940 Act. As to any matter which does not affect the interest of a particular
Sub-Trust, only the holders of Shares of the one or more affected Sub-Trusts
shall be entitled to vote thereon.
Redemption by Shareholder. Each holder of Shares of a particular Sub-Trust
shall have the right at such times as may be permitted by the Trust, but no
less frequently than once each week, to require the Trust to redeem all or
any part of such holders Shares of that Sub-Trust at a redemption price
equal to the net asset value per Share of that Sub-Trust next determined in
accordance with subsection (h) of this Section 4.2 after the Shares are
properly tendered for redemption. Payment of the redemption price shall be
in cash provided, however, that if conditions exist which make payment
wholly in cash unwise or undesirable, the Trust may, subject to the
requirements of the 1940 Act, make payment wholly or partly in securities
or other assets belonging to the Sub-Trust of which the Shares being
redeemed are part at the value of such securities or assets used in such
determination of net asset value.
Notwithstanding the foregoing, the Trust shall redeem Shares at such
times as may be required to comply with the requirements of the 1940 Act
and applicable rules and regulations thereunder, and may postpone
payment of the redemption price and may suspend the right of the holders of
Shares of any Sub-Trust to require the Trust to redeem Shares of that
Sub-Trust during any period or at any time when and to the extent permissible
under the 1940 Act.
Redemption by Trust. Each Share of each Sub-Trust that has been established
and designated is subject to redemption by the Trust at the redemption price
which would be applicable if such Share was then being redeemed by the
Shareholder pursuant to subsection (f) of this Section 4.2 (a) at any time,
if the Trustees determine in their sole discretion that failure to so redeem
may have materially adverse consequences to the holders of the Shares of
the Trust or any Sub-Trust thereof, (b) upon such other conditions as may
from time to time be determined by the Trustees, including without
limitation in furtherance of subsection of this Section 4.2, and set
forth in the then current Prospectus of the Trust with respect to
maintenance of shareholder accounts of a minimum amount, or (C) as may be
required to satisfy a requirement in an Order under the 1940 Act permitting
Mixed and Shared Funding by the Trust.
Net Asset Value. The net asset value per Share of any Sub-Trust, or any
Class of Shares of a Sub-Trust, shall be the quotient obtained by dividing
the value of the net assets of that Sub-Trust (being the value of the assets
belonging to that Sub-Trust less the liabilities belonging to that
Sub-Trust), or a Class thereof, by the total number of Shares of that
Sub-Trust (or such Class) outstanding, all determined in accordance with
the methods and procedures, including without limitation those with
respect to rounding, established by the Trustees from time to time.
The Trustees may determine to maintain the net asset value per Share of any
Sub-Trust at a designated constant dollar amount and in connection therewith
may adopt procedures not inconsistent with the 1940 Act for the continuing
declarations of income attributable to that Sub-Trust as dividends payable
in additional Shares of that Sub-Trust at the designated constant dollar
amount and for the handling of any losses attributable to that Sub-Trust.
Such procedures may provide that in the event of any loss each Shareholder
shall be deemed to have contributed to the capital of the Trust attributable
to that Sub-Trust the Shareholders pro rata portion of the total number of
Shares required to be cancelled in order to permit the net asset value per
Share of that Sub-Trust to be maintained, after reflecting such loss, at
the designated constant dollar amount. Each Shareholder of the Trust
shall be deemed to have agreed, by such holders investment in any Sub-Trust
with respect to which the Trustees shall have adopted any such procedure,
to make the contribution referred to in the preceding sentence in the event
of any such loss.
Transfer. Subject to the limitations set forth in Section 4.2(g) above,
and in the following paragraph, all Shares of each particular Sub-Trust
shall be freely transferable, but transfers of Shares of a particular
Sub-Trust will be recorded on the Share transfer records of the Trust
applicable to that Sub-Trust only at such times as Shareholders shall have
the right to require the Trust to redeem Shares of that Sub-Trust and at
such other times as may be permitted by the Trustees.
Notwithstanding the foregoing, the Trust reserves the right, to the maximum
extent permitted by the Massachusetts General Laws and the 1940 Act, to
prohibit or restrict the transfer of its Shares from the person or company,
as those terms are defined in the 1940 Act, to whom the Shares were issued
to any other person or company and to prohibit the transfer to or the
continued holding of its Shares by any holder if the acquisition or holding
of Shares of the Trust by such person or company would adversely affect the
status of the Trust or any holder of its Shares under applicable provisions
of the Internal Revenue Code. In furtherance of the foregoing, and not in
limitation thereof, so long as Shares of the Trust are offered pursuant
to arrangements with the Trusts principal investment adviser and provider
of management and administrative services, the Trust reserves the right
to refuse to register or to transfer Shares to any person or company other
than the person or company to whom such Shares were originally issued and,
in lieu of such registration and transfer, to redeem such Shares at the
then current net asset value at the price and in the manner specified in
subsection (f) of this Section 4.2.
Equality. Subject to the provisions herein relating to the issuance of
Shares of a Sub-Trust in one or more Classes, all Shares of each particular
Sub-Trust shall represent an equal proportionate interest in the assets
belonging to that Sub-Trust (subject to the liabilities belonging to that
Sub-Trust), and each Share of any particular Sub-Trust shall be equal to
each other Share of that Sub-Trust but the provisions of this sentence
shall not restrict any distinctions permissible under subsection (c) of
this Section 4.2 that may exist with respect to dividends and distributions
on Shares of the same Sub-Trust. The Trustees may from time to time divide
or combine the Shares of any particular Sub-Trust into a greater or lesser
number of Shares of that Sub-Trust without thereby changing the
proportionate beneficial interest in the assets belonging to that Sub-Trust
or in any way affecting the rights of Shares of any other Sub-Trust.
Fractions. Any fractional Share of any Sub-Trust, if any such fractional
Share is outstanding, shall carry proportionately all the rights and
obligations of a whole Share of that Sub-Trust, including rights and
obligations with respect to voting, receipt of dividends and distributions,
redemption of Shares, and liquidation of the Trust or any Sub-Trust.
Conversion Rights. Subject to compliance with the requirements of the 1940
Act, the Trustees shall have the authority to provide that holders of Shares
of any Sub-Trust shall have the right to convert said Shares into Shares of
one or more other Sub-Trust in accordance with such requirements and
procedures as may be established by the Trustees.
Ownership of Shares. The ownership of Shares shall be recorded on the
books of the Trust or of a transfer or similar agent for the Trust, which
books shall be maintained separately for the Shares of each Sub-Trust that
has been established and designated. No certificates certifying the
ownership of Shares need 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 use of
facsimile signatures, 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
and as to the number of Shares of each Sub-Trust held from time to time by
each such Shareholder.
Investments in the Trust. The Trustees may accept investments in the Trust
and each Sub-Trust thereof from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase of Shares that conform to such authorized terms and
to reject any purchase orders for Shares whether or not conforming to such
authorized terms.
To the extent permitted by the 1940 Act and to the extent that the portfolio
management and operations of any Sub-Trust are not adversely affected, each
Sub-Trust may invest its cash assets in Shares of any Sub-Trust to the
extent permitted by the then current Prospectus applicable to such Sub-Trust.
For all Trust purposes, such investments in any Sub-Trust by other Sub-Trusts
will be deemed the issuance of Shares by such Sub-Trusts to the Sub-Trusts
and the withdrawal of such investments will be deemed a redemption of Shares
of such Sub-Trusts. Similarly, each of the other Sub-Trusts will deem such
an investment a purchase or redemption of Shares of such Sub-Trusts. Any
Sub-Trust investing in any Sub-Trust pursuant to this procedure, will
participate equally on a pro-rata basis in all income, capital gains and
net assets of such Sub-Trusts and will have all rights and obligations of
a Shareholder as provided in this Declaration of Trust, including voting
rights hereunder provided, however, that such Shares of such Sub-Trusts
issued to such other Sub-Trusts shall be voted by the Trustees in the same
proportion as the Shares of such Sub-Trusts which are not held by the other
Sub-Trusts.
No Pre-emptive Rights. Shareholders shall have no pre-emptive or other right
to subscribe to any additional Shares or other securities issued by the Trust.
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 Trust or any Sub-Trust
thereof 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.
Section 4.7. No Appraisal Rights. Shareholders shall have no right to
demand payment for their Shares or to any other rights of dissenting
shareholders in the event the Trust or any Sub-Trust participates in any
transaction which would give rise to appraisal or dissenters rights by a
stockholder of a corporation organized under Chapter 156B of the General
Laws of the Commonwealth of Massachusetts, or otherwise.
SHAREHOLDERS VOTING POWERS AND MEETINGS
Voting Powers. The Shareholders shall have power to vote only for the
election or removal of Trustees as provided in Section 3.1, with
respect to any contract with a Contracting Party as provided in Section
3.3 as to which Shareholder approval is required by the 1940 Act,
with respect to any termination or reorganization of the Trust or any
Sub-Trust to the extent and as provided in Sections 7.1 and 7.2,
with respect to any amendment of this Declaration of Trust to the
extent and as provided in Section 7.3, to the same extent as the
stockholders of a Massachusetts business corporation as to whether or
not a court action, proceeding or claim should or should not be
brought or maintained derivatively or as a class action on behalf of
the Trust or any Sub-Trust thereof or the Shareholders (provided,
however, that a Shareholder of a particular Sub-Trust shall not be entitled
to a derivative or class action on behalf of any other Sub-Trust (or
Shareholder of any other Sub-Trust) of the Trust) and with respect
to such additional matters relating to the Trust as may be required by
the 1940 Act, this Declaration of Trust, the By-Laws or any registration
of the Trust with the Commission (or any successor agency) or any state,
or as the Trustees may consider necessary or desirable. 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 the By-Laws to be taken by Shareholders.
Meetings. No annual or regular meeting of Shareholders is required.
Special meetings of Shareholders may be called by the Trustees from time
to time for the purpose of taking action upon any matter requiring the
vote or authority of the Shareholders as herein provided or upon any other
matter deemed by the Trustees to be necessary or desirable. Written notice
of any meeting of Shareholders shall be given or caused to be given by the
Trustees by mailing or transmitting such notice at least seven days before
such meeting, postage prepaid, stating the time, place and purpose of the
meeting, to each Shareholder at the Shareholders address as it appears on
the records of the Trust. The Trustees shall promptly call and give notice
of a meeting of Shareholders for the purpose of voting upon removal of any
Trustee of the Trust when requested to do so in writing by Shareholders
holding not less than 10 percent of the Shares then outstanding. If the
Trustees shall fail to call or give notice of any meeting of
Shareholders for a period of 30 days after written application by
Shareholders holding at least 10 percent of the Shares then outstanding
requesting a meeting be called for any other purpose requiring action
by the Shareholders as provided herein or in the By-Laws, then Shareholders
holding at least 10 percent of the Shares then outstanding may call and
give notice of such meeting, and thereupon the meeting shall be held in
the manner provided for herein in case of call thereof by the Trustees.
Record Dates. (a) For the purpose of determining the Shareholders who
are entitled to vote or act at any meeting or any adjournment thereof,
or for the purpose of any other action, the Trustees may from time to
time close the transfer books for such period, not exceeding thirty days
(except at or in connection with the termination of the Trust), as the
Trustees may determine or without closing the transfer books, the Trustees
may fix a date and time not more than one hundred and twenty days prior
to the date of any meeting of Shareholders or other action as the date
and time of record for the determination of Shareholders entitled to vote
at such meeting or any adjournment thereof, or to be treated as
Shareholders of record for purposes of such other action, and any Shareholder
who was a Shareholder at the date and time so fixed shall be entitled to
vote at such meeting or any adjournment thereof or to be treated as a
Shareholder of record for purposes of such other action, even though
such holder has since that date and time disposed of such Shares, and
no Shareholder becoming such after that date and time shall be so
entitled to vote at such meeting or any adjournment thereof or to be
treated as a Shareholder of record for purposes of such other action.
(b) For the purpose of determining the Shareholders who are entitled
to participate in any dividend or distribution, the Trustees may, from
time to time, close the transfer books for such period, not exceeding
thirty days (except at or in connection with the termination of the
Trust), as the Trustees may determine or without closing the transfer
books, the Trustees may fix a date and time not more than sixty days
prior to the date of any dividend or distribution as the date and time
of record for the determination of Shareholders entitled to be treated
as Shareholders of record for purposes of such dividend or distribution
as the date and time of record for the determination of Shareholders
entitled to be treated as Shareholders of record for purposes of such
dividend or distribution, even though such Shareholder has since that
date and time disposed of such Shares, and no Shareholder becoming
such after that date and time shall be so entitled to be treated as a
Shareholder of record for purposes of such dividend or distribution.
Quorum and Required Vote. A majority of the Shares entitled to vote
shall be a quorum for the transaction of business at a Shareholders
meeting, but any lesser number shall be sufficient for adjournments.
Any adjourned session or sessions may be held, within a reasonable
time after the date set for the original meeting without the necessity
of further notice. A majority of the Shares voted, at a meeting of
which a quorum is present shall decide any questions and a plurality
shall elect a Trustee, except when a different vote is required or
permitted by any provision of the 1940 Act or other applicable law
or by this Declaration of Trust or the By-Laws.
Action by Written Consent. Subject to the provisions of the 1940
Act and other applicable law, any action taken by Shareholders may
be taken without a meeting if a majority of Shareholders entitled
to vote on the matter (or such larger proportion thereof as shall
be required by the 1940 Act or by any express provision of this
Declaration of Trust or the By-Laws) consent to the action in writing
and such written consents are filed with the records of the meetings
of Shareholders. Such consent shall be treated for all purposes as a
vote taken at a meeting of Shareholders.
Inspection of Records. The records of the Trust shall be open to
inspection by Shareholders to the same extent as is permitted stockholders
of a Massachusetts business corporation under the Massachusetts Business
Corporation Law.
Additional Provisions. The By-Laws may include further provisions for
Shareholders votes and meetings and related matters not inconsistent
with the provisions hereof.
Shareholder Communications. Whenever ten or more Shareholders of record
who have been such for at least six months preceding the date of
application, and who hold in the aggregate either Shares having a net
asset value of at least $25,000 or at least 1 percent of the outstanding
Shares, whichever is less, shall apply to the Trustees in writing,
stating that they wish to communicate with other Shareholders with a
view to obtaining signatures to a request for a Shareholder meeting
and accompanied by a form of communication and request which they wish
to transmit, the Trustees shall within five business days after
receipt of such application either (1) afford to such applicants
access to a list of the names and addresses of all Shareholders as
recorded on the books of the Trust or
Sub-Trust, as applicable or (2) inform such applicants as to the approximate
number of Shareholders of record, and the approximate cost of mailing to
them the proposed communication and form of request.
If the Trustees elect to follow the course specified in clause (2) above,
the Trustees, upon the written request of such applicants, accompanied by
a tender of the material to be mailed and of the reasonable expenses of
mailing, shall, with reasonable promptness, mail such material to all
Shareholders of record at their addresses as recorded on the books, unless
within five business days after such tender the Trustees shall mail to such
applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement signed by at least a majority
of the Trustees to the effect that in their opinion either such material
contains untrue statements of fact or omits to state facts necessary to
make the statements contained therein not misleading, or would be in
violation of applicable law, and specifying the basis of such opinion.
The Trustees shall thereafter comply with any order entered by the
Commission and the requirements of the 1940 Act and the Securities Exchange
Act of 1934.
LIMITATION OF LIABILITY INDEMNIFICATION
Trustees, Trustees Emeritus, Shareholders, etc. Not Personally Liable
Notice. All persons extending credit to, contracting with or having any
claim against the Trust shall look only to the assets of the Sub-Trust
with which such person dealt for payment under such credit, contract or
claim and neither the Shareholders of any Sub-Trust nor the Trustees,
nor the Trustees Emeritus, nor any of the Trusts officers, employees or
agents, whether past, present or future, nor any other Sub-Trust shall
be personally liable therefor. Every note, bond, contract, instrument,
certificate or undertaking and every other act or thing whatsoever executed
or done by or on behalf of the Trust, any Sub-Trust or the Trustees or
Trustees Emeritus or any of them in connection with the Trust shall be
conclusively deemed to have been executed or done only by or for the Trust
(or the Sub-Trust) or the Trustees or the Trustees Emeritus and not
personally. Nothing in this Declaration of Trust shall protect any Trustee,
Trustee Emeritus or officer against any liability to the Trust or the
Shareholders to which such Trustee, Trustee Emeritus or officer would
otherwise 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, Trustee Emeritus or of such officer.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officers or officer shall give notice
that this Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts and shall recite to the effect that the same
was executed or made by or on behalf of the Trust or by them as Trustees
or Trustee or as officers or officer and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property
of the Trust, or the particular Sub-Trust in question, as the case may be,
but the omission thereof shall not operate to bind any Trustees or Trustee
or Trustee Emeritus or officers or officer or Shareholders or Shareholder
individually.
Trustees and Trustees Emeritus Good Faith Action Expert Advice No Bond or
Surety. The exercise by the Trustees of their powers and discretion
hereunder shall be binding upon everyone interested. A Trustee or Trustee
Emeritus shall be liable for the Trustees or Trustee Emerituss own willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee or Trustee Emeritus,
and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. Subject to the foregoing, (a) the Trustees or
Trustees Emeritus shall not be responsible or liable in any event for any
neglect or wrongdoing of any officer, agent, employee, consultant, adviser,
administrator, distributor or principal underwriter, custodian or transfer,
dividend disbursing, shareholder servicing or accounting agent of the Trust,
nor shall any Trustee or Trustee Emeritus be responsible for the act or
omission of any other Trustee or Trustee Emeritus (b) the Trustees or Trustees
Emeritus may take advice of counsel or other experts with respect to the
meaning and operation of this Declaration of Trust and their duties as
Trustees or Trustees Emeritus, and shall be under no liability for any act
or omission in accordance with such advice or for failing to follow such
advice and (c) in discharging their duties, the Trustees or Trustees Emeritus,
when acting in good faith, shall be entitled to rely upon the books of account
of the Trust and upon written reports made to the Trustees by any officer
appointed by them, any independent public accountant, and (with respect to the
subject matter of the contract involved) any officer, partner or responsible
employee of a Contracting Party appointed by the Trustees pursuant to Section
3.3. The Trustees or Trustees Emeritus as such shall not be required to give
any bond or surety or any other security for the performance of their duties.
Indemnification of Shareholders. In case any Shareholder (or former
Shareholder) of any Sub-Trust of the Trust shall be charged or held to be
personally liable for any obligation or liability of the Trust solely by
reason of being or having been a Shareholder and not because of such
Shareholders acts or omissions or for some other reason, said Sub-Trust
(upon proper and timely request by the Shareholder) shall assume the defense
against such charge and satisfy any judgment thereon, and the Shareholder or
former Shareholder (or such Shareholders or former Shareholders 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 said Sub-Trust estate to be held harmless
from and indemnified against all loss and expense arising from such liability.
Indemnification of Trustees, Trustees Emeritus, Officers, etc. The
Trust shall indemnify (from the assets of the Sub-Trust or Sub-Trusts in
question) each of its Trustees, Trustees Emeritus and officers (including
persons who serve at the Trusts request as directors, officers, trustees or
trustees emeritus of another organization in which the Trust has any interest
as a shareholder, creditor or otherwise (hereinafter referred to as a Covered
Person)) against all liabilities, including but not limited to amounts paid
in satisfaction of judgments, in compromise or as fines and penalties, and
expenses, including reasonable accountants and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or
may have been involved as a party or otherwise or with which such person may
be or may have been threatened, while in office or thereafter, by reason of
being or having been such a Trustee, Trustee Emeritus or officer, director,
trustee or trustee emeritus, except with respect to any matter as to which
it has been determined that such Covered Person did not act in good
faith in the reasonable belief that such Covered Persons action was in or
not opposed to the best interests of the Trust or had acted with
willful misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of such Covered Persons office (either
and both of the conduct described in and being referred to
hereafter as Disabling Conduct). A determination that the Covered Person is
entitled to indemnification may be made by a final decision on the
merits by a court or other body before whom the proceeding was brought that
the person to be indemnified was not liable by reason of Disabling Conduct,
dismissal of a court action or an administrative proceeding against a
Covered Person for insufficiency of evidence of Disabling Conduct, or
a reasonable determination, based upon a review of the facts, that the
Covered Person was not liable by reason of Disabling Conduct by (a) a vote
of a majority of a quorum of Trustees who are neither interested persons of
the Trust as defined in section 2(a)(19) of the 1940 Act nor parties to the
proceeding, or (b) an independent legal counsel in a written opinion.
Expenses, including accountants and counsel fees so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of judgments,
in compromise or as fines or penalties), may be paid from time to time by
the Sub-Trust in question in advance of the final disposition of any such
ction, suit or proceeding, provided that the Covered Person shall have
undertaken to repay the amounts so paid to the Sub-Trust in question if it is
ultimately determined that indemnification of such expenses is not authorized
under this Article 6 and the Covered Person shall have provided security
for such undertaking, the Trust shall be insured against losses arising
by reason of any lawful advances, or a majority of a quorum of the
disinterested Trustees who are not a party to the proceeding, or an independent
legal counsel in a written opinion, shall have determined, based on a review
of readily available facts (as opposed to a full trial-type inquiry), that
there is reason to believe that the Covered Person ultimately will be found
entitled to indemnification.
Compromise Payment. As to any matter disposed of by a compromise payment by
any such Covered Person referred to in Section 6.4, pursuant to a consent
decree or otherwise, no such indemnification either for said payment or for
any other expenses shall be provided unless such indemnification shall be
approved by a majority of the disinterested Trustees who are not a party
to the proceeding or by an independent legal counsel in a written
opinion. Approval by the Trustees pursuant to clause or by independent
legal counsel pursuant to clause shall not prevent the recovery from
any Covered Person of any amount paid to such Covered Person in accordance
with any of such clauses as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction not to have
acted in good faith in the reasonable belief that such Covered Persons action
was in or not opposed to the best interests of the Trust or to have been
liable to the Trust or its Shareholders by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of such Covered Persons office.
Indemnification Not Exclusive, etc. The right of indemnification provided
by this Article 6 shall not be exclusive of or affect any other rights to
which any such Covered Person may be entitled. As used in this Article 6,
Covered Person shall include such persons heirs, executors and administrators,
an interested Covered Person is one against whom the action, suit or other
proceeding in question or another action, suit or other proceeding on the
same or similar grounds is then or has been pending or threatened, and a
disinterested person is a person against whom none of such actions, suits
or other proceedings or another action, suit or other proceeding on the
same or similar grounds is then or has been pending or threatened. Nothing
contained in this Article 6 shall affect any rights to indemnification to
which personnel of the Trust, other than Trustees, Trustees Emeritus and
officers, and other persons may be entitled by contract or otherwise under
law, nor the power of the Trust to purchase and maintain liability
insurance on behalf of any such person.
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 or to see to the
application of any payments made or property transferred to the Trust or
upon its order.
MISCELLANEOUS
Duration and Termination of Trust. Unless terminated as provided herein,
the Trust shall continue without limitation of time and, without limiting
the generality of the foregoing, no change, alteration or modification
with respect to any Sub-Trust shall operate to terminate the Trust. The
Trust may be terminated at any time by a majority of the Trustees then
in office subject to a favorable vote of a majority of the outstanding
voting securities, as defined in the 1940 Act, Shares of each Sub-Trust
voting separately by Sub-Trust.
Upon termination, 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 in accordance with such
procedures as the Trustees consider appropriate reduce the remaining assets
to distributable form in cash, securities or other property, or any
combination thereof, and distribute the proceeds to the Shareholders, in
conformity with the provisions of subsection (d) of Section 4.2.
Reorganization. Any transaction effected pursuant to this Section 7.2
with respect to the Trust or any Sub-Trust may be authorized by a vote of
a majority of the Trustees or written instrument executed by a majority
of their number then in office and without the affirmative vote of a
majority of the outstanding voting Shares (as defined in the 0000 Xxx) of
the Trust or Sub-Trust. The Trustees shall provide written notice to
affected Shareholders of a transaction effected under this Section 7.2.
The Trustees may, without the affirmative vote of a majority of the
outstanding voting Shares (as defined in the 0000 Xxx) of the Trust, sell,
convey, merge and transfer the assets of the Trust (any such transaction
is referred to in this Section 7.2 as a transfer), to another trust,
partnership, association or corporation organized under the laws of any
state of the United States, in exchange for cash, shares or other securities
with such transfer either (1) being made subject to, or with the assumption
by the transferee of, the liabilities belonging to the Trust, or (2) not
being made subject to, or not with the assumption of such liabilities.
The Trustees may, without the affirmative vote of a majority of
the outstanding voting Shares (as defined in the 0000 Xxx) of the Sub-Trust,
transfer the assets belonging to any one or more Sub-Trusts, to another
trust, partnership, association or corporation organized under the laws of
any state of the United States, or to the Trust to be held as assets
belonging to another Sub-Trust of the Trust, in exchange for cash, shares
or other securities (including, in the case of a transfer to another
Sub-Trust of the Trust, Shares of such other Sub-Trust) with such transfer
either (1) being made subject to, or with the assumption by the transferee
of, the liabilities belonging to each Sub-Trust the assets of which are so
transferred, or (2) not being made subject to, or not with the assumption
of such liabilities. Following such transfer, the Trustees shall distribute
such cash, shares or other securities (giving due effect to the assets and
liabilities belonging to and any other differences among the various
Sub-Trusts the assets belonging to which have so been transferred) among
the Shareholders of the Sub-Trust the assets belonging to which have been
so transferred and if all of the assets of the Sub-Trust have been so
transferred, the Sub-Trust shall be terminated.
The Trustees may, without the affirmative vote of a majority of the
outstanding voting Shares (as defined in the 0000 Xxx) of the Trust, (1)
consolidate the Trust, either as successor, survivor or non-survivor,
with one or more other trusts, partnerships, associations or corporations
organized under the laws of the Commonwealth of Massachusetts or any other
state of the United States, to form a new consolidated trust, partnership,
association or corporation under the laws of which any one of the constituent
entities is organized, or (2) merge the Trust, either as successor, survivor
or non-survivor, into one or more other trusts, partnerships, associations or
corporations organized under the laws of the Commonwealth of Massachusetts
or any other state of the United States, or have one or more such trusts,
partnerships, associations or corporations merged into it, any such
consolidation or merger to be upon such terms and conditions as are specified
in an agreement and plan of reorganization entered into by the Trust, in
connection therewith.
The Trustees may, without the affirmative vote of a majority of the
outstanding voting Shares (as defined in the 0000 Xxx) of the Sub-Trust,
(1) consolidate any one or more Sub-Trusts, either as successor, survivor
or non-survivor, with one or more other trusts, partnerships, associations
or corporations organized under the laws of the Commonwealth of Massachusetts
or any other state of the United States, to form a new consolidated trust,
partnership, association or corporation under the laws of which any one of
the constituent entities is organized, or (2) merge any one or more
Sub-Trusts, either as successor, survivor or non-survivor, into one or more
other trusts, partnerships, associations or corporations organized under
the laws of the Commonwealth of Massachusetts or any other state of the United
States, or have one or more such trusts, partnerships, associations or
corporations merged into it, any such consolidation or merger to be upon
such terms and conditions as are specified in an agreement and plan of
reorganization entered into by one or more Sub-Trusts, as the case may be,
in connection therewith. The terms merge or merger as used herein shall also
include the purchase or acquisition of any assets of any other trust,
partnership, association or corporation which is an investment company
organized under the laws of the Commonwealth of Massachusetts or any other
state of the United States.
The foregoing provisions shall also apply, with appropriate modifications as
determined by the Trustees, to the transfer, consolidation or merger of any
Class of any Sub-Trust.
Amendments. All rights granted to the Shareholders under this Declaration of
Trust are granted subject to the reservation of the right to amend this
Declaration of Trust as herein provided, except that no amendment shall repeal
the limitations on personal liability of any Shareholder or Trustee or repeal
the prohibition of assessment upon the Shareholders without the express
consent of each Shareholder or Trustee involved. Subject to the foregoing,
the provisions of this Declaration of Trust (whether or not related to the
rights of Shareholders) may be amended at any time, so long as such amendment
does not 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 in writing signed by a majority of the then Trustees (or by an
officer of the Trust pursuant to the vote of a majority of such Trustees).
Any amendment to this Declaration of Trust that adversely affects the rights
of Shareholders may be adopted at any time by an instrument in writing signed
by a majority of the then Trustees (or by an officer of the Trust pursuant to
a vote of a majority of such Trustees) when authorized to do so by the vote
in accordance with subsection (e) of Section 4.2 of Shareholders holding a
majority of the Shares entitled to vote. Subject to the foregoing, any such
amendment shall be effective as provided in the instrument containing the
terms of such amendment or, if there is no provision therein with respect to
effectiveness, upon the execution of such instrument and of a certificate
(which may be a part of such instrument) executed by a Trustee or officer of
the Trust to the effect that such amendment has been duly adopted.
Filing of Copies References Headings. The original or a copy of this
instrument and of each amendment hereto shall be kept at the office of the
Trust where it may be inspected by any Shareholder. A copy of this instrument
and of each amendment hereto shall be filed by the Trust with the Secretary
of the Commonwealth of Massachusetts and with the Boston City Clerk, as well
as any other governmental office where such filing may from time to time be
required, but the failure to make any such filing shall not impair the
effectiveness of this instrument or any such amendment. Anyone dealing with
the Trust may rely on a certificate by an officer of the Trust as to whether
or not any such amendments have been made, as to the identities of the
Trustees and officers, and as to any matters in connection with the Trust
hereunder and, with the same effect as if it were the original, may rely on
a copy certified by an officer of the Trust to be a copy of this instrument
or of any such amendments. In this instrument and in any such amendment,
references to this instrument, and all expressions like herein, hereof and
hereunder shall be deemed to refer to this instrument as a whole as the
same may be amended or affected by any such amendments. The masculine gender
shall include the feminine and neuter genders. Headings are placed herein
for convenience of reference only and shall not be taken as a part hereof
or control or affect the meaning, construction or effect of this instrument.
This instrument may be executed in any number of counterparts each of which
shall be deemed an original.
Applicable Law. This Declaration of Trust is created under and is to be
governed by and construed and administered according to the laws of the
Commonwealth of Massachusetts, including the Massachusetts Business
Corporation Law as the same may be amended from time to time, to which
reference is made with the intention that matters not specifically covered
herein or as to which an ambiguity may exist shall be resolved as if the
Trust were a business corporation organized in Massachusetts, but the
reference to said Business Corporation Law is not intended to give the Trust,
the Trustees, the Shareholders or any other person any right, power,
authority or responsibility available only to or in connection with an
entity organized in corporate form. The Trust shall be of the type referred
to in Section 1 of Chapter 182 of the Massachusetts General Laws and 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.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals
for themselves and their assigns, this 1st day of October, 2008. This
instrument may be executed in one or more counterparts, all of which shall
together constitute a single instrument.
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