XXXXXX MULTICAP GROWTH FUND
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
This AMENDED AND RESTATED AGREEMENT AND DECLARATION OF
TRUST made at Boston, Massachusetts, on this 17th day of April,
2014, hereby amends and restates in its entirety the Agreement
and Declaration of Trust dated June 25, 1990, as heretofore
amended, by the Trustees hereunder and by the holders of shares
of beneficial interest issued hereunder as hereinafter provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the
business of an investment company; and
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as trustees of a Massachusetts voluntary
association with transferable shares in accordance with the
provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities and other assets, 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 in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Name
Section 1. This Trust shall be known as Xxxxxx MultiCap Growth
Fund and the Trustees shall conduct the business of the Trust
under that name or any other name as they may from time to time
determine.
Definitions
Section 2. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) The Trust refers to the Massachusetts business trust
established by this Agreement and Declaration of Trust, as
amended from time to time;
(b) Trustees refers to the Trustees of the Trust elected
in accordance with Article IV;
(c) Shares means the equal proportionate transferable
units of interest into which the beneficial interest in the
Trust shall be divided from time to time or, if more than
one series or class of Shares is authorized by the
Trustees, the equal proportionate transferable units into
which each series or class of Shares shall be divided from
time to time;
(d) Shareholder means a record owner of Shares;
(e) The 1940 Act refers to the Investment Company Act of
1940 and the Rules and Regulations thereunder, all as
amended from time to time;
(f) The terms Affiliated Person, Assignment, Commission,
Interested Person, Principal Underwriter and Majority
Shareholder Vote (the 67% or 50% requirement of the third
sentence of Section 2(a)(42) of the 1940 Act, whichever may
be applicable) shall have the meanings given them in the
1940 Act (as modified by any applicable exemptive order
issued thereunder by the Securities and Exchange
Commission);
(g) Declaration of Trust shall mean this Agreement and
Declaration of Trust as amended or restated from time to
time;
(h) Bylaws shall mean the Bylaws of the Trust as amended
or restated from time to time;
(i) The term series or series of Shares refers to the one
or more separate investment portfolios of the Trust into
which the assets and liabilities of the Trust may be
divided and the Shares of the Trust representing the
beneficial interest of Shareholders in such respective
portfolios; and
(j) The term class or class of Shares refers to the
division of Shares representing any series into two or more
classes as provided in Article III, Section 1 hereof.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed
investment primarily in securities, debt instruments and other
instruments and rights of a financial character.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The number of Shares authorized shall be unlimited.
The Shares of the Trust shall be issued in one or more series as
the Trustees may, without shareholder approval, authorize. Each
series shall be preferred over all other series in respect of
the assets allocated to that series within the meaning of the
1940 Act and shall represent a separate investment portfolio of
the Trust. The beneficial interest in each series shall at all
times be divided into Shares, without par value unless otherwise
determined by the Trustees, each of which shall, except as
provided in the following sentence, represent an equal
proportionate interest in the series with each other Share of
the same series, none having priority or preference over
another. The Trustees may, without Shareholder approval, divide
the Shares of any series into two or more classes, Shares of
each such class having such preferences and special or relative
rights and privileges (including conversion rights, if any) as
the Trustees may determine and as shall be set forth in the
Bylaws. The Trustees may, without Shareholder approval, from
time to time divide or combine the Shares of any series or class
into a greater or lesser number without thereby changing the
proportionate beneficial interest in the series or class. The
Trustees may also, without shareholder approval, from time to
time combine the Shares or two or more classes of any series
into a single class.
Ownership of Shares
Section 2. 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
retirement 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 and class and as to the number of Shares of each series
and class held from time to time by each Shareholder.
Investment in the Trust
Section 3. 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 or the Bylaws 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.
No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right
to subscribe to any additional Shares or other securities issued
by the Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property
giving only the rights provided in this Declaration of Trust or
the Bylaws. Every Shareholder by virtue of having become a
Shareholder shall be held to have expressly assented and agreed
to the terms of this Declaration of Trust and the Bylaws and to
have become a party thereto. The death of a Shareholder during
the continuance of the Trust shall not operate to terminate the
same nor entitle the representative of any deceased Shareholder
to an accounting or to take any action in court or elsewhere
against the Trust or the Trustees, but only to the rights of
said decedent under this Trust. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or any
part of the Trust property or right to call for a partition or
division of the same or for 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.
Derivative Actions
Section 6. No Shareholder shall have the right to bring or
maintain any court action, proceeding or claim on behalf of the
Trust without first making demand on the Trustees requesting the
Trustees to bring or maintain such action, proceeding or claim.
Such demand shall be mailed to the Clerk of the Trust at the
Trusts principal office and shall set forth in reasonable detail
the nature of the proposed court action, proceeding or claim and
the essential facts relied upon by the Shareholder to support
the allegations made in the demand. The Trustees may determine
whether the bringing or maintenance of any such action,
proceeding or claim is in the best interests of the Trust or,
alternatively in their sole discretion, may submit the matter to
a vote of the Shareholders of the Trust. Any such determination
made by the Trustees in good faith shall be binding on all
Shareholders.
Exclusive Selection of Forum for Certain Shareholder Actions
Section 7. Any action brought by a Shareholder seeking to
enforce any right or privilege of Shareholders under this
Declaration of Trust, challenging the powers of the Trustees
thereunder, alleging a breach of fiduciary duty by any Trustee
or officer of the Trust or otherwise involving primarily the
internal affairs of the Trust may be brought only in the courts
of The Commonwealth of Massachusetts.
ARTICLE IV
The Trustees
Election
Section 1. A Trustee may be elected either by the Trustees or
by the Shareholders. The number of Trustees shall be fixed from
time to time by the Trustees and, at or after the commencement
of the business of the Trust, shall be not less than three.
Each Trustee elected by the Trustees or the Shareholders shall
serve until he or she retires, resigns, is removed or dies or
until the next meeting of Shareholders called for the purpose of
electing Trustees and until the election and qualification of
his or her successor.
Removal
Section 2. A Trustee may be removed (i) by vote of the
holders of twothirds of the outstanding Shares at a meeting
called for the purpose or (ii) by vote of twothirds of the
Trustees.
Effect of Death, Resignation, etc. of a Trustee
Section 3. The death, declination, resignation, retirement,
removal or incapacity of the Trustees, or any one of them, shall
not operate to annul the Trust or to revoke any existing agency
created pursuant to the terms of this Declaration of Trust.
Powers
Section 4. 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. Without limiting the
foregoing, the Trustees may adopt Bylaws not inconsistent with
this Declaration of Trust providing for the conduct of the
business of the Trust and may amend and repeal them to the
extent that such Bylaws do not reserve that right to the
Shareholders; they may fill vacancies in or add to their number,
and may elect and remove such officers and appoint and terminate
such agents as they consider appropriate; they may appoint from
their own number, and terminate, any one or more committees
consisting of two or more Trustees, including an executive
committee which may, when the Trustees are not in session,
exercise some or all of the power and authority of the Trustees
as the Trustees may determine; they may employ one or more
custodians of the assets of the Trust and may authorize such
custodians to employ subcustodians and to deposit all or any
part of such assets in a system or systems for the central
handling of securities, retain a transfer agent or a Shareholder
servicing agent, or both, provide for the distribution of Shares
by the Trust, through one or more principal underwriters or
otherwise, set record dates for the determination of
Shareholders with respect to various matters, and in general
delegate such authority as they consider desirable to any
officer of the Trust, to any committee of the Trustees and to
any agent or employee of the Trust or to any such custodian or
underwriter.
Without limiting the foregoing, the Trustees shall have
power and authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the
Trust;
(c) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or
property; and to execute and deliver proxies or powers of
attorney to such person or persons as the Trustees shall deem
proper, granting to such person or persons such power and
discretion with relation to securities or property as the
Trustees shall deem proper;
(d) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable
form, or in the name of the Trustees or of the Trust or in the
name of a custodian, subcustodian or other depositary or a
nominee or nominees or otherwise;
(f) Subject to the provisions of Article III, Section 3, to
allocate assets, liabilities, income and expenses of the Trust
to a particular series of Shares or to apportion the same among
two or more series, provided that any liabilities or expenses
incurred by or arising in connection with a particular series of
Shares shall be payable solely out of the assets of that series;
and to the extent necessary or appropriate to give effect to the
preferences and special or relative rights and privileges of any
classes of Shares, to allocate assets, liabilities, income and
expenses of a series to a particular class of Shares of that
series or to apportion the same among two or more classes of
Shares of that series;
(g) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
issuer, any security of which is or was held in the Trust; 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 held in the Trust;
(h) To join other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any
security to, any such committee, depositary or trustee, and to
delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee,
depositary or trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy,
including but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To borrow funds;
(l) 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 any part
thereof to secure any of or all such obligations;
(m) To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the
conduct of the business, including without limitation, insurance
policies insuring the assets of the Trust and payment of
distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers or managers,
principal underwriters, or independent contractors of the Trust
individually against all claims and liabilities of every nature
arising by reason of holding, being or having held any such
office or position, or by reason of any action alleged to have
been taken or omitted by any such person as Shareholder,
Trustee, officer, employee, agent, investment adviser or
manager, principal underwriter, or independent contractor,
including any action taken or omitted that may be determined to
constitute negligence, whether or not the Trust would have the
power to indemnify such person against such liability; and
(n) To pay pensions for faithful service, as deemed appropriate
by the Trustees, and to adopt, establish and carry out pension,
profitsharing, share bonus, share purchase, savings, thrift and
other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and
other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust.
The Trustees shall not in any way be bound or limited by
any present or future law or custom in regard to investments by
trustees. Except as otherwise provided herein or from time to
time in the Bylaws, any action to be taken by the Trustees may
be taken by a majority of the Trustees present at a meeting of
the Trustees (a quorum 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.
Payment of Expenses by Trust
Section 5. The Trustees are authorized to pay or to cause
to be paid out of the assets of the Trust, all expenses, fees,
charges, taxes and liabilities incurred or arising in connection
with the Trust, or in connection with the management thereof,
including, but not limited to, the Trustees compensation and
such expenses and charges for the services of the Trusts
officers, employees, investment adviser or manager, principal
underwriter, auditor, counsel, custodian, transfer agent,
Shareholder servicing agent, and such other agents or
independent contractors and such other expenses and charges as
the Trustees may deem necessary or proper to incur, provided,
however, that all expenses, fees, charges, taxes and liabilities
incurred by or arising in connection with a particular series of
Shares shall be payable solely out of the assets of that series.
Ownership of Assets of the Trust
Section 6. Title to all of the assets of each series of
Shares and of the Trust shall at all times be considered as
vested in the Trustees.
Advisory, Management and Distribution
Section 7. Subject to a favorable Majority Shareholder Vote
to the extent required by applicable law, the Trustees may, at
any time and from time to time, contract for exclusive or
nonexclusive advisory and/or management services with any
corporation, trust, association or other organization (the
Manager), every such contract to comply with such requirements
and restrictions as may be set forth in the Bylaws; and any such
contract may contain such other terms interpretive of or in
addition to said requirements and restrictions as the Trustees
may determine, including, without limitation, authority to
determine from time to time what investments shall be purchased,
held, sold or exchanged and what portion, if any, of the assets
of the Trust shall be held uninvested and to make changes in the
Trusts investments. The Trustees may also, at any time and from
time to time, contract with the Manager or any other
corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or principal
underwriter for the Shares, every such contract to comply with
such requirements and restrictions as may be set forth in the
Bylaws; and any such contract may contain such other terms
interpretive of or in addition to said requirements and
restrictions as the Trustees may determine.
The fact that:
(i) 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 corporation, trust, association, or other
organization, or of or for any parent or affiliate of any
organization, with which an advisory or management contract, or
principal underwriters or distributors contract, or transfer,
Shareholder servicing or other agency contract may have been or
may hereafter be made, or that any such organization, or any
parent or affiliate thereof, is a Shareholder or has an interest
in the Trust, or that
(ii) any corporation, trust, association or other organization
with which an advisory or management contract or principal
underwriters or distributors contract, or transfer, Shareholder
servicing or other agency contract may have been or may
hereafter be made also has an advisory or management contract,
or transfer, Shareholder servicing or other agency contract with
one or more other corporations, trusts, associations, or other
organizations, or has other business or interests
shall not affect the validity of any such contract or disqualify
any Shareholder, Trustee or officer of the Trust from voting
upon or executing the same or create any liability or
accountability to the Trust or its Shareholders.
ARTICLE V
Shareholders Voting Powers and Meetings
Voting Powers
Section 1. Subject to the voting powers of one or more classes
of Shares as set forth elsewhere in this Declaration of Trust or
in the Bylaws, the Shareholders shall have power to vote only
(i) for the election of Trustees as provided in Article IV,
Section 1, (ii) for the removal of Trustees as provided in
Article IV, Section 2, (iii) with respect to any Manager as
provided in Article IV, Section 6, (iv) with respect to any
termination of this Trust to the extent and as provided in
Article IX, Section 4, (v) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Article
IX, Section 8, and (vi) with respect to such additional matters
relating to the Trust as may be required by this Declaration of
Trust, the Bylaws or any registration of the Trust with the
Securities and Exchange Commission (or any successor agency) or
any state, or as the Trustees may consider necessary or
desirable. Each whole Share shall be entitled to one vote as to
any matter on which it is entitled to vote and each fractional
Share shall be entitled to a proportionate fractional vote. On
any matter submitted to a vote of Shareholders, all Shares of
the Trust then entitled to vote shall, except as otherwise
provided in the Bylaws, be voted in the aggregate as a single
class without regard to series or classes of shares, except (1)
when required by the 1940 Act or when the Trustees shall have
determined that the matter affects one or more series or classes
of Shares materially differently, Shares shall be voted by
individual series or class; and (2) when the Trustees have
determined that the matter affects only the interests of one or
more series or classes, only Shareholders of such series or
classes shall be entitled to vote thereon. There shall be no
cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy. A proxy with respect to Shares
held in the name of two or more persons shall be valid if
executed by any one of them unless at or prior to exercise of
the proxy the Trust receives a specific written notice to the
contrary from any one of them. A proxy purporting to be
executed by or on behalf of a Shareholder shall be deemed valid
unless challenged at or prior to its exercise and, in the case
of a challenge by any person other than the Trust, the burden of
proving invalidity shall rest on the challenger. Until Shares
of any series or class are issued, the Trustees may exercise all
rights of Shareholders and may take any action required by law,
this Declaration of Trust or the Bylaws to be taken by
Shareholders as to such series or class.
Voting Power and Meetings
Section 2. Meetings of Shareholders of any or all series or
classes 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 of such series or classes 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 such notice at least seven days before such
meeting, postage prepaid, stating the time, place and purpose of
the meeting, to each Shareholder entitled to vote at such
meeting at the Shareholders address as it appears on the records
of the Trust. 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% of the
then outstanding shares of all series and classes entitled to
vote at such meeting requesting a meeting to be called for a
purpose requiring action by the Shareholders as provided herein
or in the Bylaws, then Shareholders holding at least 10% of the
then outstanding Shares of all series and classes entitled to
vote at such meeting 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. Notice of a
meeting need not be given to any Shareholder if a written waiver
of notice, executed by him or her before or after the meeting,
is filed with the records of the meeting, or to any Shareholder
who attends the meeting without protesting prior thereto or at
its commencement the lack of notice to him or her.
Quorum and Required Vote
Section 3. Thirty percent of Shares entitled to vote on a
particular matter shall be a quorum for the transaction of
business on that matter at a Shareholders meeting, except that
where any provision of law or of this Declaration of Trust or
the Bylaws requires that holders of any series or class shall
vote as an individual series or class, then thirty percent of
the aggregate number of Shares of that series or class entitled
to vote shall be necessary to constitute a quorum for the
transaction of business by that series or class. 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. Except when a larger vote is required by any
provision of law or of this Declaration of Trust or the Bylaws,
a majority of the Shares voted shall decide any questions and a
plurality shall elect a Trustee, provided that where any
provision of law or of this Declaration of Trust or the Bylaws
requires that the holders of any series or class shall vote as
an individual series or class then a majority of the Shares of
that series or class voted on the matter (or a plurality with
respect to the election of a Trustee) shall decide that matter
insofar as that series or class is concerned.
Action by Written Consent
Section 4. 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 any express provision of this Declaration of Trust
or the Bylaws) 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.
Additional Provisions
Section 5. The Bylaws may include further provisions, not
inconsistent with this Declaration of Trust, regarding
Shareholders voting powers, the conduct of meetings and related
matters.
ARTICLE VI
Distributions, Redemptions and Repurchases
Distributions
Section 1. The Trustees may each year, or more frequently if
they so determine, distribute to the Shareholders of each series
out of the assets of such series such amounts as the Trustees
may determine. Any such distribution to the Shareholders of a
particular series shall be made to said Shareholders pro rata in
proportion to the number of Shares of such series held by each
of them, except to the extent otherwise required or permitted by
the preferences and special or relative rights and privileges of
any classes of Shares of that Series, and any distribution to
the Shareholders of a particular class of Shares shall be made
to such Shareholders pro rata in proportion to the number of
Shares of such class held by each of them. Such distributions
shall be made in cash, Shares or other property, 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.
Redemptions and Repurchases
Section 2. 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 any redemption charge fixed 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 at
any time the New York Stock Exchange is closed for other than
customary weekends or holidays, or, if permitted by rules of the
Securities and Exchange 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 Securities and
Exchange 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. Payment for any redemption, purchase or repurchase may
be made in cash or, except to the extent prohibited by the laws
of any jurisdiction in which Shares are registered for sale, in
other property, or any combination thereof. The composition of
any such payment shall be determined by the Trust in its sole
discretion, and the Trust shall have no obligation to effect a
pro rata division of cash or other property in making any such
payment. In no event shall the Trust be liable for any delay of
any other person in transferring securities or other property
selected for delivery as all or part of any such payment.
Redemption at the Option of the Trust
Section 3. 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, in which
case the Trust may redeem all Shares owned by such Shareholder
or only so many of such Shares as may be required to compensate
the Trust for any fee fixed from time to time by the Trustees
for the maintenance of small accounts; (ii) to the extent that
such Shareholder owns Shares of a particular series of Shares
equal to or in excess of a percentage of the outstanding Shares
of that series determined from time to time by the Trustees;
(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; (iv) if such Shareholder
fails to supply appropriate personal and tax identification
information requested by the Trust; (v) if such Shareholder
fails to meet or maintain the qualifications for ownership of a
particular series or class; or (vi) if the Trustees determine
for any other reason, in their sole discretion, that the
ownership of Shares by a Shareholder is not in the best
interests of the remaining Shareholders of the Trust or of the
applicable series or class.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Compensation
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust; they may fix the amount of their
compensation. Nothing herein shall in any way prevent the
employment of any Trustee for advisory, management, legal,
accounting, investment banking or other services and payment for
the same by the Trust.
Limitation of Liability
Section 2. A Trustee shall be liable for his or her own willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Trustee,
and for nothing else. The Trustees shall not be responsible or
liable in any event for any neglect or wrongdoing of any
officer, agent, employee, manager or principal underwriter of
the Trust, nor shall any Trustee be responsible for the act or
omission of any other Trustee. The appointment, designation or
identification of a Trustee as an officer of the Trustees or of
any committee of the Trustees, or as an expert with respect to
certain matters (including without limitation identification of
a Trustee as an audit committee financial expert) shall not
impose on that person any duty, obligation or liability that is
greater than the duties, obligations and liabilities imposed on
that person as a Trustee in the absence of such appointment,
designation or identification, and no Trustee who has special
skills or expertise or who is appointed, designated of
identified as aforesaid, shall be held to a higher standard of
care by virtue thereof or be limited in any way with respect to
any right or privilege to which such person would otherwise be
entitled as a Trustee hereunder, including without limitation
the right of indemnification. Nothing herein contained shall
protect any Trustee against any liability to which he or she
would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office.
ARTICLE VIII
Indemnification
Trustees, Officers, etc.
Section 1. The Trust shall indemnify each of its Trustees and
officers (including persons who serve at the Trusts request as
directors, officers or trustees 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 and expenses, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees reasonably incurred by any
Covered Person in connection with the defense or disposition of
any threatened, pending, or contemplated action, suit, or
proceeding, whether civil, criminal, administrative,
arbitrative, or investigative and whether formal or informal
before any court or administrative or legislative or other body,
in which such Covered Person may be or may have been involved as
a party or otherwise or with which such Covered Person may be or
may have been threatened, while in office or thereafter, by
reason of being or having been such a Covered Person except with
respect to any matter as to which such Covered Person shall have
been finally adjudicated in any such action, suit or other
proceeding (a) not to have acted in good faith, (b) not to have
acted in the reasonable belief that such Covered Persons action
was in the best interests of the Trust or at least was not
opposed to the best interests of the Trust, (c) in the case of a
criminal proceeding, to have had reasonable cause to believe his
or her action was unlawful or (d) to be 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 (each of such
exceptions being referred to hereinafter as Disabling Conduct).
Expenses, including counsel fees so incurred by any such Covered
Person (but excluding amounts paid in satisfaction of judgments,
in compromise or as fines or penalties), shall be paid from time
to time by the Trust in advance of the final disposition of any
such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such Covered Person to repay amounts so paid
to the Trust if it is ultimately determined that indemnification
of such expenses is not authorized under this Article, provided,
however, that either (a) such Covered Person shall have provided
appropriate security for such undertaking, (b) the Trust shall
be insured against losses arising from any such advance payments
or (c) either a majority of the disinterested Trustees acting on
the matter (provided that a majority of the disinterested
Trustees then in office act on the matter), or independent legal
counsel in a written opinion, shall have determined, based upon
a review of readily available facts (as opposed to a full trial
type inquiry) that there is reason to believe that such Covered
Person will be found entitled to indemnification under this
Article. In making any such determination, the disinterested
Trustees or such counsel, as the case may be, shall afford the
Covered Person a rebuttable presumption that the Covered Person
did not engage in Disabling Conduct.
Compromise Payment
Section 2. As to any matter disposed of (whether by a
compromise payment, pursuant to a consent decree or otherwise)
without an adjudication by a court, or by any other body before
which the action, suit, or proceeding was brought, that such
Covered Person engaged in Disabling Conduct, indemnification
shall be provided if (a) approved as in the best interests of
the Trust, after notice that it involves such indemnification,
by at least a majority of the disinterested Trustees acting on
the matter (provided that a majority of the disinterested
Trustees then in office act on the matter) upon a determination,
based upon a review of readily available facts (as opposed to a
full trial type inquiry) that such Covered Person did not engage
in Disabling Conduct, or (b) there has been obtained an opinion
in writing of independent legal counsel, based upon a review of
readily available facts (as opposed to a full trial type
inquiry) to the effect that such Covered Person did not engage
in Disabling Conduct. Any approval pursuant to this Section
shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with this
Section as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction
not to have engaged in Disabling Conduct.
Right Not Exclusive
Section 3. The right of indemnification hereby provided shall
not be exclusive of or affect any other rights to which such
Covered Person may be entitled. As used in this Article VIII,
the term Covered Person shall include such persons heirs,
executors and administrators and a disinterested Trustee is a
Trustee who is not an interested person of the Trust as defined
in Section 2(a)(19) of the 1940 Act (or who has been exempted
from being an interested person by any rule, regulation or order
of the Securities and Exchange Commission) and 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. Nothing contained in this Article shall
affect any rights to indemnification to which personnel of the
Trust, other than Trustees or 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.
Shareholders
Section 4. 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 representative 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 IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable for
Obligations of the Trust; Notice
Section 1. 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 Trusts officers, employees or
agents, whether past, present or future, shall be personally
liable therefor.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever executed or
done by any Trustee, officer, employee or agent on behalf of the
Trust or the Trustees or any of them in connection with the
Trust shall be conclusively deemed to have been executed or done
only in or with respect to such persons capacity as a Trustee,
officer, employee or agent, and such person shall not be
personally liable thereon.
Every note, bond, contract, instrument, certificate or
undertaking executed on behalf of the Trust by any Trustee,
officer, employee or agent of the Trust shall give notice that
this Declaration of Trust is on file with the Secretary of State
of The Commonwealth of Massachusetts and shall recite that the
same was executed by them on behalf of the Trust in their
capacity as Trustees, officers, employees or agents of the Trust
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 the
person so executing may deem appropriate, but any omission of
such notice or recitals shall not operate to bind any such
Trustee, officer, employee or agent or the Shareholders
individually.
Trustees Faith Actions Binding; Expert Advice; No Bond or Surety
Section 2. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested.
The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of
Trust, and shall be under no liability for any act or omission
taken in accordance with such advice or for failing to follow
such advice. The Trustees shall not be required to give any bond
as such, nor any surety if a bond is required.
Liability of Third Persons Dealing with Trustee
Section 3. 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.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust
and each series and class shall continue without limitation of
time. The Trust or any series or class of any series may be
terminated at any time (i) by the Trustees by written notice to
the Shareholders of the Trust or to the Shareholders of the
particular series or class, as the case may be, or (ii) by the
affirmative vote of the lesser of (1) more than 50% of the
outstanding Shares of each series or class entitled to vote, or
(2) 67% or more of the Shares of each series or class entitled
to vote and present at a meeting called for this purpose if more
than 50% of the outstanding Shares of each series or class
entitled to vote are present at the meeting in person or by
proxy. Upon termination of the Trust or of any series or class,
after paying or otherwise providing for all charges, taxes,
expenses and liabilities, whether due or accrued or anticipated,
of the Trust, or of the particular series or class, as may be
determined by the Trustees, the Trust shall in accordance with
such procedures as the Trustees consider appropriate reduce the
remaining assets of the Trust, or of the particular series or
classes, as the case may be, to distributable form in cash or
shares or other property, or any combination thereof, and
distribute the proceeds to the Shareholders of the Trust or of
the particular series or class, ratably according to the number
of Shares of such series or class held by the several
Shareholders of such series or class on the date of termination,
except to the extent otherwise required or permitted by the
preferences and special or relative rights and privileges of any
classes of Shares of that series or class.
Merger, Consolidation, Sale of Assets and Other Reorganizations
Section 5. Except as otherwise required by applicable law,
the Trustees may, without Shareholder approval, authorize the
Trust or any series or class to merge, consolidate or reorganize
with any other entity (including another series or class of the
Trust), or to sell or exchange all or substantially all of the
assets of the Trust or of any series or class, in each case upon
such terms and for such consideration as they may determine to
be in the best interests of the Trust or of the particular
series or class. The authority provided by this Section shall be
in addition to the powers granted to the Trustees under any
other provision of this Declaration of Trust.
Filing and Copies, References, Headings
Section 6. 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 State 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. 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 and as to any matters in
connection with the Trust hereunder, and, with the same effect
as if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any
such amendments. In this instrument and in any such amendment,
references to this instrument and all expressions like herein,
hereof and hereunder shall be deemed to refer to this instrument
as amended or affected by any such amendments. Headings are
placed herein for convenience of reference only and shall not be
taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. This instrument may
be executed in any number of counterparts each of which shall be
deemed an original.
Applicable Law
Section 7. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to
be governed by and construed and administered according to the
laws of said Commonwealth. The Trust shall be of the type
commonly called a Massachusetts business trust and, without
limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust.
Amendments
Section 8. 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 a vote of the
Shareholders, provided that Shareholder authorization shall not
be required in the case of any amendment (i) having the purpose
of changing the name of the Trust or of supplying any omission,
curing any ambiguity or curing, correcting or supplementing any
defective or inconsistent provision contained herein or (ii)
which is determined by the Trustees in their sole discretion not
to have a material adverse effect on the Shareholders of any
series or class of Shares.
IN WITNESS WHEREOF, the undersigned, being a majority of
the Trustees of the Trust, have hereunto set their hands and
seals in the City of Boston, Massachusetts for themselves and
their assigns, as of the day and year first above written.
/s/ Xxxxxxx Xxxxxx /s/ Xxxx X. Xxxx
Xxxxxxx Xxxxxx
/s/ Xxxx Xxxxxxx
Xxxx X. Xxxx
/s/ Xxxx X. Xxxxxx
Xxxx Xxxxxxx
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx, III
Xxxxxxx X. Xxxxxx
Xxxxxx Xxxxxx, III
/s/ Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
/s/ W. Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxxxx
W. Xxxxxx Xxxxxxxx
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
Boston, April 17, 2014
Then personally appeared each of the above named
Trustees of Xxxxxx MultiCap Growth Fund and acknowledged the
foregoing instrument to be his or her free act and deed, before
me,
/s/ J.
ScottHarris
Notary
Public
My Commission
Expires: August 29, 2019
The individuals listed on the signature page represent all of
the members of the Board of Trustees of the Trust. The business
address of the Trust and each Trustee is Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
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