Exhibit 23(a)
AGREEMENT AND DECLARATION OF TRUST
OF CENTURY CAPITAL MANAGEMENT TRUST
THIS AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts,
this 27th day of August, 1999 by the Trustees hereunder, and, as provided in
Article III, Section 5 hereof, by the holders of shares of beneficial interest
to be issued as hereinafter provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees from time to time have agreed to manage all
property coming into their hands as trustees of a Massachusetts business trust
in accordance with the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets, which they may from time to time acquire in
any manner as Trustees hereunder, IN TRUST to manage and dispose of the same
upon the following terms and conditions for the pro rata benefit of the holders
from time to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
NAME
Section 1. This Trust shall be known as Century Capital Management
Trust 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 Trustee(s) of the Trust named herein or
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 of Shares is authorized by the
Trustees, the equal proportionate units into which each series of Shares shall
be divided from time to time or, if more than one class of Shares of any series
is authorized by the Trustees, the equal proportionate units into which each
class of such series 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, as
modified by or interpreted by any applicable order or orders of the Commission
or any rules or regulations adopted or interpretative releases of the Commission
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;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time; and
(h) "By-Laws" shall mean the By-Laws of the Trust, as amended or
restated from time to time.
ARTICLE II
PURPOSE
The purpose of the Trust is to provide investors a managed investment
primarily in securities, commodities and debt instruments.
ARTICLE III
SHARES
DIVISION OF SHARES INTO SERIES AND CLASSES
Section 1. The Trustees may, in their discretion, from time to time,
without the need for approval of Shareholders authorize the division of Shares
into one or more series, and the different series shall be established and
designated, and the variations in the relative rights, privileges and
preferences as between the different series shall be fixed and determined by
resolution of the Trustees upon and subject to the following provisions:
(a) All Shares shall be identical except that there may be such
variations as shall be fixed and determined by the Trustees between different
series as to purchase price, right of redemption and the price, terms and manner
of redemption, and special and relative rights as to dividends and on
liquidation and except as set forth in Section 1(h) of this Article III.
(b) The number of authorized Shares and the number of Shares of each
series that may be issued shall be unlimited. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any series into one or more series that may be established and designated from
time to time. The Trustees may hold as treasury shares (of the same or some
other series), reissue for such consideration and on such terms as they may
determine, or cancel any Shares of any series reacquired by the Trust at their
discretion from time to time.
(c) All consideration received by the Trust for the issuance or sale of
Shares of a particular series, together with all assets in which such
consideration is invested or reinvested, all income and earnings thereon,
profits therefrom, 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
irrevocably belong to that series for all purposes, subject only to the rights
of creditors of such series, and shall be so recorded upon the books of account
of the Trust. In the event that there are any assets, income, earnings, profits,
proceeds, funds or payments which are not readily identifiable as belonging to
any particular series, the Trustees shall allocate them to and among any one or
more of the series 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. Each such allocation by the Trustees shall be conclusive and binding
upon the Shareholders of all series for all purposes. No Shareholder of any
particular series shall have any claim on or right to any assets allocated or
belonging to any other series of Shares.
(d) The assets belonging to each particular series shall be charged
with the liabilities of the Trust in respect of that series and all expenses,
costs, charges and reserves attributable to that series, and any general
liabilities, expenses, costs, charges or reserves of the Trust that are not
readily identifiable as belonging to any particular series shall be allocated
and charged by the Trustees to and among any one or more of the series
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. Each allocation
of liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all series for all purposes. 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. In no circumstances shall the assets allocated or
belonging to any particular series be charged with liabilities, expenses, costs,
charges or reserves attributable to any other series. All persons who have
extended credit that has been allocated to a particular series, or who have a
claim or contract which has been allocated to any particular series, shall look
only to the assets of that particular series for payment of such credit, claim
or contract.
(e) The power of the Trustees to invest and reinvest the Trust Property
allocated or belonging to any particular series shall be governed by Article IV,
Section 3 hereof unless otherwise provided by the Trustees at the time of
establishing such series or thereafter.
(f) Each Share of a series shall represent a beneficial interest in the
net assets allocated or belonging to such series only, and such interest shall
not extend to the assets of the Trust generally. Dividends and distributions on
Shares of a particular series may be paid with such frequency as the Trustees
may determine, which may be monthly or otherwise, pursuant to a standing vote or
votes adopted only once or with such frequency as the Trustees may determine, to
the Shareholders of that series only, from such of the income and capital gains,
accrued or realized, from the assets belonging to that series, as the Trustees
may determine, after providing for actual and accrued liabilities belonging to
that series. All dividends and distributions on Shares of a particular series
shall be distributed pro rata to the Shareholders of that series in proportion
to the number of Shares of that series held by such Shareholders at the date and
time of record established for the payment of such dividends or distributions.
Shares of any particular series of the Trust may be redeemed solely out of Trust
property allocated or belonging to that series. Upon liquidation or termination
of a series of the Trust, Shareholders of such series shall be entitled to
receive a pro rata share of the net assets of such series only.
(g) At any time that there are no Shares outstanding of any particular
series previously established and designated, the Trustees may by an instrument
executed by a majority of their number abolish that series and the establishment
and designation thereof.
(h) Notwithstanding anything in this Declaration to the contrary, the
Trustees may, in their discretion, from time to time, without the need for
approval of Shareholders, authorize the division of Shares of any series into
Shares of one or more classes or subseries of such series. All Shares of a class
or a subseries shall be identical with each other and with the Shares of each
other class or subseries of the same series, except that the Trustees may
provide for such variations between classes or subseries as may be permitted
under the 1940 Act or pursuant to any exemptive order issued by the Commission.
OWNERSHIP AND TRANSFER OF SHARES
Section 2. The ownership of Shares shall be recorded on the books of
the Trust or its transfer or similar agent. No certificates certifying the
ownership of Shares shall be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the transfer of Shares and
similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent of the Trust, 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.
Section 3. Shares shall be transferable on the records of the Trust
only by the record holder thereof or by his or her agent thereunto authorized in
writing, upon delivery to the Trustees or the transfer or similar agent, of a
duly executed instrument of transfer together with any certificate or
certificates (if issued) for such Shares and such evidence of the genuineness of
each such execution and authorization and of other matters as may reasonably be
required. Upon such delivery the transfer shall be recorded on the books of the
Trust. Until such record is made, the Shareholder of record shall be deemed to
be the holder of such Shares for all purposes hereunder and neither the Trustees
nor any transfer or similar agent or registrar nor any officer, employee or
agent of the Trust shall be affected by any notice of the proposed transfer.
Any person becoming entitled to any Shares in consequence of the death,
bankruptcy, or incompetence of any Shareholder, or otherwise by operation of
law, shall be recorded on the books of the Trust as the holder of such Shares
upon production of the proper evidence thereof to the Trustees, or the transfer
or similar agent; but until such record is made, the Shareholder of record shall
be deemed to be the holder of such Shares for all purposes hereunder and neither
the Trustees nor any transfer or similar agent or registrar nor any officer or
agent of the Trust shall be affected by any notice of such death, bankruptcy or
incompetence, or other operation of law.
INVESTMENTS IN THE TRUST
Section 4. The Trustees shall accept investments in the Trust from such
persons and on such terms and, subject to any requirements of law, for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as they may, from time to time, authorize.
NO PREEMPTIVE RIGHTS
Section 5. Shareholders shall have no preemptive or other right to
receive, purchase or subscribe for any additional Shares or other securities
issued by the Trust.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
Section 6. Shares shall be deemed to be personal property having only
the rights provided in this instrument. Every Shareholder by virtue of having
become a Shareholder shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto. The death of a Shareholder
during the continuance of the Trust shall not operate to terminate the same nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in a 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. A trust is created hereby, and not a partnership or any other
form of legal relationship, and the ownership of Shares shall not 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.
NOTICES
Section 7. Any and all notices to which any Shareholder may be entitled
and any and all communications shall be deemed duly served or given if mailed,
postage prepaid, addressed to any Shareholder of record at his or her last known
address as recorded on the register of the Trust.
ARTICLE IV
THE TRUSTEES
ELECTION
Section 1. The number of Trustees shall be fixed by a majority of the
Trustees, except that, following any sale of Shares pursuant to a public
offering, there shall be not less than three Trustees. Any vacancies occurring
in the Board of Trustees may be filled by the Trustees if, immediately after
filling any such vacancy, at least two-thirds (or such lesser or greater
proportion as shall then be required by the 0000 Xxx) of the Trustees then
holding office shall have been elected to such office by the Shareholders. In
the event that at any time less than a majority (or such lesser or greater
proportion as shall then be required by the 0000 Xxx) of the Trustees then
holding office were elected to such office by the Shareholders, the Trustees
shall call a meeting of Shareholders for the purpose of electing Trustees.
Subject to the provisions of Section 16(a) of the 1940 Act, the
Trustees shall hold office during the lifetime of this Trust and until its
termination as hereinafter provided; except that (a) any Trustee may resign his
or her trust (without need for prior or subsequent accounting) by an instrument
in writing signed by him or her and delivered to the other Trustees, which shall
take effect upon such delivery or upon such later date as is specified therein;
(b) any Trustee may be removed with cause, at any time by written instrument
signed by at least two-thirds of the remaining Trustees, specifying the date
when such removal shall become effective; (c) any Trustee who has attained a
mandatory retirement age established pursuant to any written policy adopted from
time to time by at lest two-thirds of the Trustees shall, automatically and
without action of such Trustee or the remaining Trustees, be deemed to have
retired in accordance with the terms of such policy, effective as of the date
determined in accordance with such policy; (d) any Trustee who has become
incapacitated by illness or injury as determined by a majority of the other
Trustees, may be retired by written instrument signed by a majority of the other
Trustees, specifying the date of his or her retirement; and (e) a Trustee may be
removed at any meeting of Shareholders by a vote of two-thirds of the
outstanding Shares. For purposes of the foregoing clause (b), the term "cause"
shall include, but not be limited to, willful misconduct, dishonesty, fraud, a
felony conviction, or failure to comply with such written policies as may from
time to time be adopted by at least two-thirds of the Trustees with respect to
the conduct of Trustees and attendance at meetings. Upon the resignation,
retirement or removal of a Trustee, or his or her otherwise ceasing to be a
Trustee, he or she shall execute and deliver such documents as the remaining
Trustees shall require for the purpose of conveying to the Trust or the
remaining Trustees any Trust property held in the name of the resigning,
retiring or removed Trustee. Upon the incapacity or death of any Trustee, his or
her legal representative shall execute and deliver on his or her behalf such
documents as the remaining Trustees shall require as provided in the preceding
sentence.
The initial Trustee(s), each of whom shall serve until the first
meeting of Shareholders at which Trustees are elected and until his or her
successor is elected and qualified, or until he or she sooner dies, resigns or
is removed, shall be Xxxxx X. Xxxxxxxxx and such other persons, if any, as the
Trustee or Trustees then in office shall, prior to any sale of Shares pursuant
to a public offering, appoint.
EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
Section 2. The death, 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 3. 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 By-Laws not inconsistent with
this Declaration of Trust providing for the conduct of the business of the Trust
and may amend and repeal them to the extent that such By-Laws do not reserve
that right to the Shareholders; they may fill vacancies in their number,
including vacancies resulting from increases in 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 appoint an advisory board, the members of which shall not be Trustees and
need not be Shareholders; they may employ or contract with one or more
custodians of the assets of the Trust, 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 services 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; they may determine and change the
fiscal year of the Trust and the method by which its accounts are kept; they may
set record dates for any purpose; they may set apart, from time to time, out of
any funds of the Trust a reserve or reserves for any proper purpose, and abolish
such reserves.
The Trustees in all instances shall act as principals, and are and
shall be free from the control of the Shareholders. The Trustees shall have full
power and authority to do any and all acts and to make and execute any and all
contracts and instruments that they may consider necessary or appropriate in
connection with the management of the Trust.
Without limiting the foregoing, the Trustees shall have power and authority:
(a) To invest reinvest, purchase or otherwise acquire, own, hold,
pledge, sell, assign, transfer, exchange, distribute, lend or otherwise deal in
or dispose of cash, any form of gold or other precious metal, commodity
contracts, any form of option contract, contracts for the future acquisition or
delivery of fixed income or other securities, shares of, or any other interest
in, any investment company as defined in the 1940 Act, and securities and
related derivatives of every nature and kind, including, without limitation, all
types of bonds, debentures, stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers acceptances, and other
securities of any kind, issued, created, guaranteed or sponsored by any and all
persons;
(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
respect 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 depository or a nominee or nominees or otherwise subject in each such case
to proper safeguards according to the usual practices of Massachusetts trust
companies or investment companies;
(f) Subject to the provisions of Article III, Section 3, to allocate
assets, liabilities and expenses of the Trust to a particular series of Shares
or to apportion the same among two or more series, provided that any liabilities
or expenses incurred by a particular series of Shares shall be payable solely
out of the assets of that series; 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 with other security holders in acting through a committee,
depository, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depository or
trustee, and to delegate to them such power and authority with respect 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 on 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 of 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;
(n) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust;
(o) To definitively interpret the investment objectives, policies and
limitations of the Trust or any series; and
(p) To carry on any other business in connection with or incidental to
any of the foregoing powers, to do everything necessary, proper or desirable for
the accomplishment of any purpose or the attainment of any object or the
furtherance of any power herein before set forth, and to do every other act or
thing incidental or appurtenant to or connected with the aforesaid purposes,
objects or powers.
The Trustees shall not be limited to investing in securities or
obligations maturing before the possible termination of the Trust, nor shall the
Trustees be limited by any law limiting the investments which may be made by
fiduciaries.
Notwithstanding any other provision of this Declaration of Trust to the
contrary, the Trustees shall have the power in their discretion without any
requirement of approval by Shareholders to either invest all or a portion of the
Trust property, or sell all or a portion of the Trust property and invest the
proceeds of such sales, in one or more investment companies to the extent not
prohibited by the 1940 Act.
The Trustees shall have power to collect all property due to the Trust;
to pay all claims, including taxes, against the Trust property; to prosecute,
arbitrate, defend, compromise or abandon any claims relating to the Trust
property; to foreclose any security interest securing any obligations, by virtue
of which any property is owed to the Trust; and to enter into releases,
agreements and other instruments.
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 By-Laws, 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 signed
by a majority of the Trustees then in office.
Any action which may be taken by the Trustees under this Declaration of
Trust or the By-Laws may be taken by the description thereof in the then
effective Prospectus and/or Statement of Additional Information relating to the
Shares under the Securities Act of 1933, as amended, or in any proxy statement
of the Trust rather than by formal resolution of the Trustees.
PAYMENT OF EXPENSES BY TRUST
Section 4. The Trustees are authorized to pay or to cause to be paid
out of the principal or income of the Trust, or partly out of principal and
partly out of income, as they deem fair, 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 Trust's
officers, employees, investment adviser or manager, principal underwriter,
auditor, counsel, custodian, transfer agent, Shareholder services 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 or arising in connection
with a particular series of Shares, as determined by the Trustees, shall be
payable solely out of the assets of that series.
OWNERSHIP OF ASSETS OF THE TRUST
Section 5. 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 6. The Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive investment advisory and/or management
services with Century Capital Management, Inc., a Massachusetts corporation, or
with any other corporation, trust, company or other organization (the
"Adviser"), and with other corporations, trusts, companies or other
organizations recommended by the Adviser to manage the portfolio securities of a
series ("Portfolio Managers"), every such contract to comply with such
requirements and restrictions as may be set forth in the By-Laws; and any such
contract shall, to the extent required by the 1940 Act, be subject to a
favorable Majority Shareholder Vote and 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 Trust's investments. The Trustees may also, at any
time and from time to time, contract with the Adviser or any other corporation,
trust, company or other organization for administrative services, or appoint the
Adviser or such other corporation, trust, company or other organization
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 By-Laws; 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
underwriter's or distributor's contract, or transfer, shareholder services or
other agency contract may have been or may hereafter be made, or that any
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 underwriter's or
distributor's contract, or transfer, Shareholder services or other agency
contract may have been or may hereafter be made also has an advisory or
management contract, or principal underwriter's or distributor's contract, or
transfer, shareholder services 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.
PRINCIPAL TRANSACTIONS
Section 7. Except in transactions permitted by the 1940 Act, or any
order of exemption issued by the Commission, the Trustees shall not, on behalf
of the Trust, buy any securities (other than Shares) from or sell any securities
(other than Shares) to, or lend any assets of the Trust to, any Trustee or
officer of the Trust or any firm of which any such Trustee or officer is a
member acting as principal, or have any such dealings with any investment
adviser, administrator, shareholder servicing agent, custodian (other than
repurchase agreements), distributor or transfer agent or with any Interested
Person of such person; but the Trust may, upon customary terms, employ any such
person, or firm or company in which such person is an Interested Person, as
broker, legal counsel, registrar, transfer agent, dividend disbursing agent or
custodian.
TRUSTEES AND OFFICERS AS SHAREHOLDERS
Section 8. Except as hereinafter provided, no officer, Trustee or
member of any advisory board of the Trust, and no member, partner, or officer,
director or trustee of the investment adviser, administrator or of the
distributor, and no investment adviser, administrator or distributor of the
Trust, shall take long or short positions in the securities issued by the Trust.
The foregoing provision shall not prevent:
(a) The distributor from purchasing Shares from the Trust if such
purchases are limited (except for reasonable allowances for clerical errors,
delays and errors of transmission and cancellation of orders) to purchases for
the purpose of filling orders for Shares received by the distributor and
provided that orders to purchase from the Trust are entered with the Trust or
the custodian promptly upon receipt of the distributor of purchase orders for
Shares, unless the distributor is otherwise instructed by its customer;
(b) The distributor from purchasing Shares as agent for the account of
the Trust;
(c) The purchase from the Trust or from the distributor of Shares by
any officer, Trustee or member of any advisory board of the Trust or by any
member, partner, officer, director or trustee of the investment adviser or of
the distributor at a price not lower than the net asset value of the Shares at
the moment of such purchase, provided that any such sales are only to be made
pursuant to a uniform offer described in the current prospectus or statement of
additional information for the Shares being purchased; or
(d) The investment adviser, the distributor, the administrator, or any
of their officers, partners, directors or trustees from purchasing Shares prior
to the effective date of the Trust's registration statement under the Securities
Act of 1933, as amended, relating to the Shares.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
VOTING POWERS
Section 1. The Shareholders shall have power to vote only (i) for the
election of Trustees as provided in Article IV, Section 1, (ii) with respect to
any Adviser or Portfolio Manager as and to the extent provided in Article IV,
Section 6, (iii) with respect to any termination of this Trust to the extent and
as provided in Article IX, Section 4, (iv) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Article IX, Section 8, (v)
to the same extent as the stockholders of a Massachusetts business corporation
as to whether or not a court action, proceeding or claim should not be brought
or maintained derivatively or as a class action on behalf of the Trust or the
Shareholders, and (vi) with respect to such additional matters relating to the
Trust as may be required by law, this Declaration of Trust, the By-Laws or any
registration of the Trust with the Commission 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. Notwithstanding any other
provision of this Declaration of Trust, on any matter submitted to a vote of
Shareholders, all Shares of the Trust then entitled to vote shall be voted by
individual series; except that (1) when required by the 1940 Act to be voted in
the aggregate, Shares shall not be voted by individual series; and (2) when the
Trustees have determined that the matter affects only the interests of
Shareholders of one or more series or classes, then only Shareholders of such
series or class(es) 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, subject to any requirements contained in the By-laws. 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.
VOTING POWER AND MEETINGS
Section 2. Meetings of Shareholders of the Trust or of any series or
class may be called by the Trustees or such other person or persons as may be
specified in the By-Laws and held from time to time for the purpose of taking
action upon any matter requiring the vote or the authority of the Shareholders
of the Trust or any series or class as herein provided or upon any other matter
deemed by the Trustees to be necessary or desirable. Meetings of Shareholders of
the Trust or of any series or class shall be called by the Trustees or such
other person or persons as may be specified in the By-Laws upon written
application. The Shareholders shall be entitled to such notice of any meeting of
the Shareholders as is required by the applicable provisions of the By-Laws.
QUORUM AND REQUIRED VOTE
Section 3. Thirty percent (30%) of the Shares entitled to vote shall be
a quorum for the transaction of business at a Shareholders' meeting, except that
where any provision of law or of this Declaration of Trust permits or requires
that holders of any series or class shall vote as a series or class, then thirty
percent (30%) 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, however, shall be
sufficient for adjournments in the absence of a quorum. 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 this Declaration of Trust or the By-Laws, 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 permits or requires that the holders of any series or class shall vote
as a 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 law
or 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.
ADDITIONAL PROVISIONS
Section 5. The By-Laws may include further provisions for Shareholders'
votes and meetings and related matters.
ARTICLE VI
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES,
AND DETERMINATION OF NET ASSET VALUE
DISTRIBUTIONS
Section 1. The Trustees may, but need not, each year distribute to the
Shareholders of each series or class such income and gains, accrued or realized,
as the Trustees may determine, after providing for actual and accrued expenses
and liabilities (including such reserves as the Trustees may establish)
determined in accordance with good accounting practices. The Trustees shall have
full discretion to determine which items shall be treated as income and which
items as capital and their determination shall be binding upon the Shareholders.
Distributions of each year's income of each series, if any be made, may be made
in one or more payments, which shall be in Shares, in cash or otherwise and on a
date or dates and as of a record date or dates determined by the Trustees. At
any time and from time to time in their discretion, the Trustees may distribute
to the Shareholders of any one or more series or classes as of a record date or
dates determined by the Trustees, in Shares, in cash or otherwise, all or part
of any gains realized on the sale or disposition of property of the series or
otherwise, or all or part of any other principal of the Trust attributable to
the series. In the case of any series not divided into two or more classes of
Shares, each distribution pursuant to this Section 1 shall be made ratably
according to the number of Shares of the series held by the several Shareholders
on the applicable record date thereof, provided that no distribution need be
made on Shares purchased pursuant to orders received, or for which payment is
made, after such time or times as the Trustees may determine. In the case of any
series divided into two or more classes, each distribution pursuant to this
Section 1 may be made in whole or in such parts as the Trustees may determine to
the Shareholders of any one or more classes, and the distribution to the
Shareholders of any class shall be made ratably according to the number of
Shares of the class (but need not be made ratably according to the number of
Shares of the series, considered without regard to class) held by the several
Shareholders on the record date thereof, provided that no distribution need be
made on Shares purchased pursuant to orders received, or for which payment is
made, after such time or times as the Trustees may determine. Any such
distribution paid in Shares will be paid at the net asset value thereof as
determined in accordance with Section 7 of this Article VI.
REDEMPTIONS AND REPURCHASES
Section 2. Any holder of Shares of the Trust may, upon presentation at
the office of the Trust or at a principal office of a transfer agent appointed
by the Trust of a written request, together with his or her certificates, if
any, for such Shares in proper form for transfer, redeem his or her Shares for
the net asset value thereof determined and computed in accordance with the
provisions of this Section 2 and the provisions of Section 7 of this Article VI.
Subject to the last paragraph of this Section 2, upon receipt by the
Trust or its transfer agent of such written request for redemption of Shares,
such Shares shall be redeemed at the net asset value per share of the
appropriate series next determined after such Shares are tendered in proper
order for transfer to the Trust or determined as of such other time fixed by the
Trustees as may be permitted or required by the 1940 Act, provided that no such
tender shall be required in the case of Shares for which a certificate or
certificates have not been issued, and in such case such Shares shall be
redeemed at the net asset value per share of the appropriate series next
determined after such request has been received or determined at such other time
fixed by the Trustees as may be permitted or required by the 0000 Xxx.
The obligation of the Trust to redeem its Shares of each series or
class as set forth above in this Section 2 shall be subject to the conditions
that during any time of emergency, as hereinafter defined, such obligation may
be suspended by the Trust by or under authority of the Trustees for such period
or periods during such time of emergency as shall be determined by or under
authority of the Trustees. If there is such a suspension, any Shareholder may
withdraw any demand for redemption and any tender of Shares which has been
received by the Trust during any such period and any tender of Shares, the
applicable net asset value of which would but for such suspension be calculated
as of a time during such period. Upon such withdrawal, the Trust shall return to
the Shareholder the certificates therefor, if any. For the purposes of any such
suspension, "time of emergency" shall mean, either with respect to all Shares or
any series of Shares, any period during which:
(a) The New York Stock Exchange is closed other than for customary
weekend and holiday closings; or
(b) The Trustees or authorized officers of the Trust shall have
determined, in compliance with any applicable rules and regulations of the
Commission, either that trading on the New York Stock Exchange is restricted, or
that an emergency exists as a result of which (i) disposal by the Trust of
securities owned by it is not reasonably practicable or (ii) it is not
reasonably practicable for the Trust fairly to determine the current value of
its net assets; or
(c) The suspension or postponement of such obligations is permitted by
order of the Commission.
The Trust may also purchase, repurchase or redeem Shares in accordance
with such other methods, upon such other terms and subject to such other
conditions as the Trustees may from time to time authorize 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. Without limiting
the foregoing, redemption of Shares of any class may be made subject to payment
to the Trust of such redemption fee as the Trustees may from time to time
determine.
PAYMENT IN KIND
Section 3. Subject to any generally applicable limitation imposed by
the Trustees, any payment on redemption of Shares may, if authorized by the
Trustees, be made wholly or partly in kind, instead of in cash. Such payment in
kind shall be made by distributing securities or other property constituting, in
the opinion of the Trustees, a fair representation of the various types of
securities and other property then held by the series of Shares being redeemed
(but not necessarily involving a portion of each of the series' holdings) and
taken at their value used in determining the net asset value of the Shares in
respect of which payment is made.
REDEMPTIONS AT THE OPTION OF THE TRUST
Section 4. The Trust shall have the right at its option and at any time
to redeem Shares of any Shareholder at the net asset value thereof as determined
in accordance with Section 7 of Article VI of this Declaration of Trust: (i) if
at such time such Shareholder owns fewer Shares than, or Shares having an
aggregate net asset value of less than, an amount determined from time to time
by the Trustees; or (ii) to the extent that such Shareholder owns Shares of a
particular series of Shares equal to or in excess of a percentage of the
outstanding Shares of that series (determined without regard to class)
determined from time to time by the Trustees; or (iii) to the extent that such
Shareholder owns Shares of the Trust representing a percentage equal to or in
excess of such percentage of the aggregate number of outstanding Shares of the
Trust or the aggregate net asset value of the Trust determined from time to time
by the Trustees.
DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES
Section 5. No dividend or distribution (including, without limitation,
any distribution paid upon termination of the Trust or of any series) with
respect to, nor any redemption or repurchase of, the Shares of any series (or of
any class) shall be effected by the Trust other than from the assets of such
series (or of the series of which such class is a part).
DISCHARGE UPON REDEMPTION
Section 6. The completion of redemption of Shares shall constitute a
full discharge of the Trust and the Trustees with respect to such shares, and
the Trustees may require that any certificate or certificates issued by the
Trust to evidence the ownership of such Shares shall be surrendered to the
Trustees for cancellation or notation.
DETERMINATION OF NET ASSET VALUE
Section 7. The term "net asset value" of the Shares of each series or
class shall mean: (i) the value of all the assets of such series or class; (ii)
less the total liabilities of such series or class; (iii) divided by the number
of Shares of such series or class outstanding, in each case at the time of each
determination. The "number of Shares of such series or class outstanding" for
the purposes of such computation shall be exclusive of any Shares of such series
or class to be redeemed and not then redeemed as to which the redemption price
has been determined, but shall include Shares of such series or class presented
for repurchase and not then repurchased and Shares of such series or class to be
redeemed and not then redeemed as to which the redemption price has not been
determined and Shares of such series or class the sale of which has been
confirmed. Any fractions involved in the computation of net asset value per
share shall be adjusted to the nearer cent unless the Trustees shall determine
to adjust such fractions to a fraction of a cent.
The Trustees, or any officer or officers or agent of this Trust
designated for the purpose by the Trustees, shall determine the net asset value
of the Shares of each series or class, and the Trustees shall fix the times as
of which the net asset value of the Shares of each series or class shall be
determined and shall fix the periods during which any such net asset value shall
be effective as to sales, redemptions and repurchases of, and other transactions
in, the Shares of such series or class, except as such times and periods for any
such transaction may be fixed by other provisions of this Declaration of Trust
or by the By-Laws.
In valuing the portfolio investments of any series or class for
determination of net asset value per share of such series or class, securities
for which market quotations are readily available shall be valued at prices
which, in the opinion of the Trustees or any officer or officers or agent of the
Trust designated for the purpose by the Trustees, most nearly represent the
market value of such securities, which may, but need not, be the most recent bid
price obtained from one or more of the market makers for such securities; other
securities and assets shall be valued at fair value as determined by or pursuant
to the direction of the Trustees. Notwithstanding the foregoing, short-term debt
obligations, commercial paper and repurchase agreements may be, but need not be,
valued on the basis of quoted yields for securities of comparable maturity,
quality and type, or on the basis of amortized cost. In determination of net
asset value of any series or class, dividends receivable and accounts receivable
for investments sold and for Shares sold shall be stated at the amounts to be
received therefor; and income receivable accrued daily on bonds and notes owned
shall be stated at the amount to be received. Any other assets shall be stated
at fair value as determined by the Trustees or such officer, officers or agent
pursuant to the Trustees' authority, except that no value shall be assigned to
good will, furniture, lists, reports, statistics or other noncurrent assets
other than real estate. Liabilities of any series or class for accounts payable
for investments purchased and for Shares tendered for redemption and not then
redeemed as to which the redemption price has been determined shall be stated at
the amounts payable therefor. In determining the net asset value of any series
or class, the person or persons making such determination on behalf of the Trust
may include in liabilities such reserves, estimated accrued expenses and
contingencies as such person or persons may in its, his or their best judgment
deem fair and reasonable under the circumstances. Any income dividends and gains
distributions payable by the Trust shall be deducted as of such time or times on
the record date therefor as the Trustees shall determine.
The manner of determining the net assets of any series or class or of
determining the net asset value of the Shares of any series or class may from
time to time be altered as necessary or desirable in the judgment of the
Trustees to conform to any other method prescribed or permitted by any
applicable law or regulation.
Determinations under this Section 7 made in good faith and in
accordance with the provisions of the 1940 Act shall be binding on all parties
concerned.
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. The Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, adviser or
principal underwriter of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee, but nothing herein contained shall protect
any Trustee against any liability to which he 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.
Every note, bond, contract, instrument, certificate, Share or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the Trust
shall be conclusively deemed to have been executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
INDEMNIFICATION
TRUSTEES, OFFICERS, ETC.
Section 1. The Trust shall indemnify to the fullest extent of the law
(including the 0000 Xxx) as currently in effect or as hereafter amended each of
its Trustees and officers and those who have ceased to be a Trustee or officer
(including persons who serve at the Trust's 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 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 or officer, except that no Covered Person shall be indemnified
against any liability to the Trust or its Shareholders to which such Covered
Person would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
such Covered Person's office. 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), may 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
that (a) such Covered Person shall provide security for his undertaking, (b) the
Trust shall be insured against losses arising by reason of such Covered Person's
failure to fulfill his undertaking, or (c) a majority of the Trustees who are
disinterested persons and who are not Interested Persons (provided that a
majority of such Trustees then in office act on the matter), or independent
legal counsel in a written opinion, shall determine, based on a review of
readily available facts (but not a full trial-type inquiry), that there is
reason to believe such Covered Person ultimately will be entitled to
indemnification.
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 in a
decision on the merits by a court, or by any other body before which the
proceeding was brought, that such Covered Person is 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
Person's office, indemnification shall be provided if (a) approved as in the
best interest of the Trust, after notice that it involves such indemnification,
by at least a majority of the Trustees who are disinterested persons and are not
Interested Persons (provided that a majority of such Trustees then in office act
on the matter), upon a determination, based upon a review of readily available
facts (but not a full trial-type inquiry) that such Covered Person is not 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 Person's office, or (b) there has been obtained an opinion in
writing of independent legal counsel, based upon a review of readily available
facts (but not a full-trial type inquiry) to the effect that such
indemnification would not protect such Covered Person against any liability to
the Trust to which such Covered Person would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office. 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 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 Person's office.
INDEMNIFICATION NOT EXCLUSIVE
Section 3. The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which any such Covered Person may be
entitled. As used in this Article VIII, the term "Covered Person" shall include
such person's heirs, executors and administrators, and a "disinterested person"
is a person against whom none of the actions, suits or other proceedings in
question 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 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 the Trustees and officers or such other
persons.
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 representatives or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled to
be held harmless from and indemnified against all loss and expense arising from
such liability, but only out of the assets of the particular series of shares of
which he or she is or was a Shareholder.
ARTICLE IX
MISCELLANEOUS
TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; 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 Trust's officers, employees or agents, whether
past, present or future, shall be personally liable therefor. Nothing in this
Declaration of Trust shall protect any Trustee against any liability to which
such Trustee 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.
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 State of The
Commonwealth of Massachusetts and shall recite that the same was executed or
made by or on behalf of the Trust or by them as 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, and may contain such
further recital as he or she or they may deem appropriate, but the omission of
any such notice or recital shall not operate to bind any Trustees or Trustee of
officers or officer or Shareholders or Shareholder individually.
TRUSTEE'S GOOD FAITH ACTION, 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. A Trustee shall not be
liable except 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 shall not be liable for errors of judgment or mistakes of
fact or law. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, and shall be
under no liability for any act or omission in accordance with such advice or for
failing to follow such advice. Each Trustee and officer or employee of the Trust
shall, in the performance of his or her duties, be fully and completely
justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the
Trust, upon an opinion of counsel, or upon reports made to the Trust by any of
its officers or employees or by the investment adviser, the distributor,
transfer agent, any shareholder servicing agent, selected dealers, accountants,
appraisers or other experts or consultants selected with reasonable care by the
Trustees, officers or employees of the Trust, regardless of whether such counsel
or expert may also be a Trustee. 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 TRUSTEES
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 shall
continue without limitation of time. The Trust may be terminated at any time by
vote of Shareholders holding at least two-thirds of the Shares of each series
entitled to vote or by the Trustees by written notice to the Shareholders. Any
series of Shares may be terminated at any time by vote of Shareholders holding
at least two-thirds of the Shares of such series entitled to vote or by the
Trustees by written notice to the Shareholders of such series.
Upon termination of the Trust or of any one or more series of Shares,
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated as may be determined by the
Trustees, the Trust shall, in accordance with such procedures as the Trustees
consider appropriate, reduce the remaining assets to distributable form in cash
or shares or other securities, or any combination thereof, and distribute the
proceeds to the Shareholders of the series involved, ratably according to the
number of Shares of such series held by the several Shareholders of such series
on the date of termination, 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, provided that 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.
FILING OF COPIES, REFERENCES, HEADINGS
Section 5. 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 Clerk of the City of Boston, 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
such as "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.
MERGER, CONSOLIDATION AND SALE OF ASSETS
Section 6. Subject to applicable law and except as otherwise provided
in Section 7 of this Article IX, the Trust or any series of the Trust may merge
or consolidate with any other corporation, association, trust or other
organization or may sell, lease or exchange all or substantially all of the
Trust property or all or substantially all of the Trust property allocated or
belonging to such series, including its good will, upon such terms and
conditions and for such consideration when and as authorized at any meeting of
Shareholders called for such purpose by the vote of the holders of two-thirds of
the outstanding Shares of all series of the Trust voting as a single class, or
of the affected series of the Trust, as the case may be, or by an instrument or
instruments in writing without a meeting, consented to by the vote of the
holders of two-thirds of the outstanding Shares of all series of the Trust
voting as a single class, or of the affected series of the Trust, as the case
may be; provided, however, that if such merger, consolidation, sale, lease or
exchange is recommended by the Trustees, the vote or written consent by Majority
Shareholder Vote shall be sufficient authorization; and any such merger,
consolidation, sale, lease or exchange shall be deemed for all purposes to have
been accomplished under and pursuant to the statutes of the Commonwealth of
Massachusetts. Nothing contained herein shall be construed as requiring approval
of Shareholders for any sale of assets in the ordinary course of the business of
the Trust.
INCORPORATION, REORGANIZATION
Section 7. Subject to applicable law, the Trustees may without the vote
or consent of Shareholders cause to be organized or assist in organizing a
corporation or corporations under the laws of any jurisdiction, or any other
trust, unit investment trust, partnership, limited liability company,
association or other organization to take over all of the Trust property or all
of the Trust property allocated or belonging to a particular series of the Trust
or to carry on any business in which the Trust or any such series shall directly
or indirectly have any interest, and to sell, convey and transfer such Trust or
series property to any such corporation, trust, partnership, limited liability
company, association or organization in exchange for the shares or securities
thereof or otherwise, and to lend money to, subscribe for shares or securities
of, and enter into any contract with any such corporation, trust, partnership,
limited liability company, association or organization in which the Trust or
such series holds or is about to acquire shares or any other interest. Subject
to applicable law, the Trustees may also cause a merger or consolidation between
the Trust or any successor thereto and any such corporation, trust, partnership,
limited liability company, association or other organization. The Trustees shall
provide written notice to the affected Shareholders of any transaction whereby,
pursuant to this Section 7, the Trust sells, conveys, or transfers substantially
all of its assets to another entity or merges or consolidates with another
entity.
ORGANIZATIONAL EXPENSES
Section 8. In the event that any person advances the organizational
expenses of the Trust, such advances shall become an obligation of the Trust
subject to such terms and conditions as may be fixed by, and on a date fixed by,
or determined with criteria fixed by the Trustees, to be amortized over a period
or periods to be fixed by the Trustees.
APPLICABLE LAW
Section 9. 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 that are ordinarily
exercised by such a trust.
AMENDMENTS
Section 10. Except as specifically provided herein, the Trustees may,
without shareholder vote, amend or otherwise supplement this Declaration of
Trust by making an amendment, a Declaration of Trust supplemental hereto or an
amended and restated Declaration of Trust. Shareholders shall have the right to
vote (a) on any amendment that would affect their right to vote granted in
Section 1 of Article V; (b) on any amendment to this Section 10; (c) on any
amendment as may be required by law or by the Trust's registration statement
filed with the Commission; and (d) on any amendment submitted to them by the
Trustees. Any amendment required or permitted to be submitted to Shareholders
that, as the Trustees determine, shall affect the Shareholders of one or more
series or classes shall be authorized by vote of the Shareholders of each series
or class affected and no vote of shareholders of a series or class not affected
shall be required. Notwithstanding anything else herein, any amendment to
Article VIII shall not limit the rights to indemnification or insurance provided
therein with respect to action or omission of Covered Persons prior to such
amendment.
Notwithstanding any other provision hereof, until such time as a
registration statement under the Securities Act of 1933, as amended, covering
the first public offering of Shares of a particular series of the Trust shall
have become effective, this Declaration may be amended in any respect as to that
series by the affirmative vote of a majority of the Trustees or by an instrument
signed by a majority of the Trustees.
FISCAL YEAR
Section 11. The fiscal year of the Trust shall end on a specified date
as set forth in the Bylaws, if any, provided, however, that the Trustees may,
without Shareholder approval, change the fiscal year of the Trust.
PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS
Section 12.
(a) The provisions of this Declaration of Trust are severable, and, if
the Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or other applicable laws and
regulations, the conflicting provision shall be interpreted so as to effectuate
as nearly as possible its original intent while complying with applicable law or
regulation; provided, however, that such determination shall not affect any of
the remaining provisions of this Declaration of Trust or render invalid or
improper any action taken or omitted prior to such determination.
(b) If any provision of this Declaration Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provisions in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
IN WITNESS WHEREOF, the undersigned Trustee has hereunto set his hand
in the City of Boston, Massachusetts for himself and his assigns, as of this
27th day of August, 1999.
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