XXXXX XXXXXX
INVESTMENT TRUST
FIRST AMENDED AND RESTATED
MASTER TRUST AGREEMENT
February 28, 1998
XXXXX XXXXXX
INVESTMENT TRUST
FIRST AMENDED AND RESTATED
MASTER TRUST AGREEMENT
PAGE
ARTICLE INAME AND DEFINITIONS 1
Section 1.1 Name and Principal Office 1
Section 1.2 Definitions 1
(a) Trust 2
(b) Class 2
(c) Trustees 2
(d) Shares 2
(e) Series 2
(f) Shareholder 2
(g) 1940 Act 2
(h) Commission 2
(i) Declaration of Trust 2
(j) By-Laws 2
ARTICLE IIPURPOSE OF TRUST 2
ARTICLE IIITHE TRUSTEES 3
Section 3.1 Number, Designation, Election, Term, etc 3
(a) Trustees 3
(b) Number 3
(c) Election and Term 3
(d) Resignation and Retirement 3
(e) Removal 3
(f) Vacancies 4
(g) Effect of Death, Resignation, etc 4
(h) No Accounting 4
(i) Trustees Emeritus Designation 4
(j) Trustees Emeritus Rights and Obligations 4
Section 3.2 Powers of Trustees 5
(a) Investments 6
(b) Disposition of Assets 6
(c) Ownership Powers 6
(d) Subscription 6
(e) Form of Holding 6
(f) Reorganization, etc 6
(g) Voting Trusts, etc 6
(h) Compromise 7
(i) Partnerships, etc 7
(j) Borrowing and Security 7
(k) Guarantees, etc 7
(l) Insurance 7
(m) Pensions, etc 7
Section 3.3 Certain Contracts 8
(a) Advisory 8
(b) Administration 8
(c) Distribution 8
(d) Custodian and Depository 8
(e) Transfer and Dividend Disbursing Agency 8
(f) Shareholder Servicing 8
(g) Accounting 9
Section 3.4 Payment of Trust Expenses and Compensation of Trustees 10
Section 3.5 Ownership of Assets of the Trust 10
ARTICLE IVSHARES 10
Section 4.1 Description of Shares 10
Section 4.2 Establishment and Designation of Sub-Trusts 12
(a) Assets Belonging to Sub-Trusts 12
(b) Liabilities Belonging to Sub-Trusts 12
(c) Dividends 13
(d) Liquidation 14
(e) Voting 14
(f) Redemption by Shareholder 14
(g) Redemption by Trust 14
(h) Net Asset Value 15
(i) Transfer 15
(j) Equality 15
(k) Fractions 16
(l) Conversion Rights 16
(m) Class Differences 16
Section 4.3 Ownership of Shares 16
Section 4.4 Investments in the Trust 16
Section 4.5 No Pre-emptive Rights 17
Section 4.6 Status of Shares and Limitation of Personal Liability 17
ARTICLE VSHAREHOLDERS VOTING POWERS AND MEETINGS 17
Section 5.1 Voting Powers 17
Section 5.2 Meetings 18
Section 5.3 Record Dates 18
Section 5.4 Quorum and Required Vote 18
Section 5.5 Action by Written Consent 19
Section 5.6 Inspection of Records 19
Section 5.7 Additional Provisions 19
Section 5.8 Shareholder Communications 19
ARTICLE VILIMITATION OF LIABILITY; INDEMNIFICATION 20
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable; Notice 20
Section 6.2 Trustees Good Faith Action; Expert Advice; No Bond or
Surety 20
Section 6.3 Indemnification of Shareholders 21
Section 6.4 Indemnification of Trustees, Officers, etc. 21
Section 6.5 Compromise Payment 22
Section 6.6 Indemnification Not Exclusive, etc. 22
Section 6.7 Liability of Third Persons Dealing with Trustees 22
ARTICLE VIIMISCELLANEOUS 23
Section 7.1 Duration and Termination of Trust 23
Section 7.2 Reorganization 23
Section 7.3 Amendments 23
Section 7.4 Filing of Copies; References; Headings 24
Section 7.5 Applicable Law 24
Section 7.6 Resident Agent 25
XXXXX XXXXXX
INVESTMENT TRUST
FIRST AMENDED AND RESTATED
MASTER TRUST AGREEMENT
FIRST AMENDED AND RESTATED MASTER TRUST AGREEMENT made at Boston,
Massachusetts this 28th day of February, 1998, by the Trustees hereunder, and
by the holders of shares of beneficial interest to be issued hereunder as
hereinafter provided.
WITNESSETH
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial
interest in separate series, each separate series to be a Sub-Trust
hereunder, all in accordance with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts business trust in accordance with
the provisions hereinafter set forth.
WHEREAS, the Trustees desire to amend and restate the Master Trust
Agreement dated October 17, 1991 in its entirety by adopting this First
Amended and Restated Master Trust Agreement, which shall supersede such
Master Trust Agreement and be the governing instrument of the Trust from and
after the date hereof.
NOW, THEREFORE, the Trustees hereby amend and restate the Master Trust
Agreement dated October 17, 1991 in its entirety and declare that they will
hold all cash, securities and other assets which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and dispose of
the same upon the following terms and conditions for the benefit of the
holders from time to time of shares of beneficial interest in this Trust or
Sub-Trusts created hereunder as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS tc \l1 "ARTICLE I NAME AND
DEFINITIONS
Section I.1 Name and Principal Office tc \l2 "Section I.1 Name and
Principal Office . This Trust shall be known as Xxxxx Xxxxxx Investment
Trust and the Trustees shall conduct the business of the Trust under that
name or any other name or names as they may from time to time determine. The
principal office of the Trust shall be located at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx or at such other location as the Trustees may from time to
time determine.
Section I.2 Definitions tc \l2 "Section I.2 Definitions . Whenever
used herein, unless otherwise required by the context or specifically
provided:
(a) The Trust tc \l3 "(a) The Trust refers to the
Massachusetts business trust established by this Trust Agreement, as amended
from time to time, inclusive of each and every Sub-Trust established
hereunder;
(b) Class tc \l3 "(b) Class refers to any class of Shares of
any Series or Sub-Trust established and designated under or in accordance
with Article IV;
(c) Trustees tc \l3 "(c) Trustees refers to the Trustees of
the Trust and of each Sub-Trust hereunder named herein or elected in
accordance with Article III;
(d) Shares tc \l3 "(d) Shares refers to the transferable
units of interest into which the beneficial interest in the Trust and each
Sub-Trust of the Trust and/or any class of any Sub-Trust (as the context may
require) shall be divided from time to time;
(e) Series tc \l3 "(e) Series refers to Series of Shares
established and designated under or in accordance with the provisions of
Article IV, each of which Series shall be a Sub-Trust of the Trust;
(f) Shareholder tc \l3 "(f) Shareholder means a record owner
of Shares;
(g) The 1940 Act tc \l3 "(g) The 1940 Act refers to the
Investment Company Act of 1940 and the Rules and Regulations thereunder, all
as amended from time to time;
(h) The term Commission tc \l3 "(h) The term Commission
shall have the meaning given it in the 1940 Act;
(i) Declaration of Trust tc \l3 "(i) Declaration of Trust
shall mean this First Amended and Restated Master Trust Agreement as amended
or restated from time to time; and
(j) By-Laws tc \l3 "(j) By-Laws shall mean the By-Laws of
the Trust as amended from time to time.
ARTICLE II
PURPOSE OF TRUST tc \l1 "ARTICLE II PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Shareholders of the Trust and each Sub-Trust of the Trust one or more
investment programs primarily in securities and debt instruments.
ARTICLE III
THE TRUSTEES tc \l1 "ARTICLE III THE TRUSTEES
Section III.1 Number, Designation, Election, Term, etc tc \l2
"Section III.1 Number, Designation, Election, Term, etc .
(a) Trustees tc \l3 "(a) Trustees . The Trustees hereof and
of each Sub-Trust hereunder are: Xxxxxxx Xxxx, 000 Xxxxxxxxxx Xxxxxx, Xxxx
Xxxxxx, XX 00000; Xxxxxx X. Xxxxxxxxxx, 00 Xxxxxx Xxx Xxxxx, Xxxxxx, XX
00000; Xxxxxx Xxxxx, HMK Associates, 00 Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxx, XX
00000; Xxxxxx X. Xxxxx, Harvard Business School, Soldiers Field, Xxxxxx Xxxx
#000, Xxxxxx, XX 00000; Xxxx X. Xxxxxxx, Xxxxxxx XxXxxx Management, Inc., 00
Xxxxxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000; Xxxxxx X. Xxxxx, The Dress
Barn, Inc., Executive Office, 00 Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000;
Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx PC Co., 000 Xxxx Xxxxxx, Xxxx 0000,
Xxx Xxxx, XX 00000; Xxxxxx X. XxXxxx, 000 Xxx Xxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx, XX 00000; Xxxxx X. XxXxxxxx, Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and Xxxxxxxxx X. Xxxx Xx., X. X. Xxx
000, Xxxxxxx, XX 00000.
(b) Number tc \l3 "(b) Number . The Trustees serving as
such, whether named above or hereafter becoming a Trustee, may increase or
decrease (to not less than two) the number of Trustees to a number other than
the number theretofore determined. No decrease in the number of Trustees
shall have the effect of removing any Trustee from office prior to the
expiration of his term, but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to subsection (e) of this
Section 3.1.
(c) Election and Term tc \l3 "(c) Election and Term . The
Trustees shall be elected by the Shareholders of the Trust at the first
meeting of Shareholders following the initial public offering of shares of
the Trust. Subject to Section 3.1(i) hereof, each Trustee, whether named
above or hereafter becoming a Trustee, shall serve as a Trustee of the Trust
and of each Sub-Trust hereunder during the lifetime of this Trust and until
its termination as hereinafter provided except as such Trustee sooner dies,
resigns or is removed. Subject to Section 16(a) of the 1940 Act, the
Trustees may elect their own successors and may, pursuant to Section 3.1(f)
hereof, appoint Trustees to fill vacancies.
(d) Resignation and Retirement tc \l3 "(d) Resignation and
Retirement . Any Trustee may resign his trust or retire as a Trustee, by
written instrument signed by him and delivered to the other Trustees or to
any officer of the Trust, and such resignation or retirement shall take
effect upon such delivery or upon such later date as is specified in such
instrument and shall be effective as to the Trust and each Sub-Trust
hereunder.
(e) Removal tc \l3 "(e) Removal . Any Trustee may be
removed with or without cause at any time: (i) by written instrument, signed
by at least two-thirds of the number of Trustees prior to such removal,
specifying the date upon which such removal shall become effective; or (ii)
by vote of Shareholders holding not less than two-thirds of the Shares then
outstanding, cast in person or by proxy at any meeting called for the
purpose; or (iii) by a written declaration signed by Shareholders holding not
less than two-thirds of the Shares then outstanding and filed with the Trusts
Custodian. Any such removal shall be effective as to the Trust and each
Sub-Trust hereunder.
(f) Vacancies tc \l3 "(f) Vacancies . Any vacancy or
anticipated vacancy resulting from any reason, including without limitation
the death, resignation, retirement, removal or incapacity of any of the
Trustees, or resulting from an increase in the number of Trustees by the
other Trustees may (but so long as there are at least two remaining Trustees,
need not unless required by the 0000 Xxx) be filled by a majority of the
remaining Trustees, subject to the provisions of Section 16(a) of the 1940
Act, through the appointment in writing of such other person as such
remaining Trustees in their discretion shall determine and such appointment
shall be effective upon the written acceptance of the person named therein to
serve as a Trustee and agreement by such person to be bound by the provisions
of this Declaration of Trust, except that any such appointment in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees to be effective at a later date shall become
effective only at or after the effective date of said retirement, resignation
or increase in number of Trustees. As soon as any Trustee so appointed shall
have accepted such appointment and shall have agreed in writing to be bound
by this Declaration of Trust and the appointment is effective, the Trust
estate shall vest in the new Trustee, together with the continuing Trustees,
without any further act or conveyance.
(g) Effect of Death, Resignation, etc tc \l3 "(g) Effect of
Death, Resignation, etc . The death, resignation, retirement, removal or
incapacity of the Trustees, or any one of them, shall not operate to annul or
terminate the Trust or any Sub-Trust hereunder or to revoke or terminate any
existing agency or contract created or entered into pursuant to the terms of
this Declaration of Trust.
(h) No Accounting tc \l3 "(h) No Accounting . Except to
the extent required by the 1940 Act or under circumstances which would
justify his or her removal for cause, no person ceasing to be a Trustee as a
result of his or her death, resignation, retirement, removal or incapacity
(nor the estate of any such person) shall be required to make an accounting
to the Shareholders or remaining Trustees upon such cessation.
(i) Trustees Emeritus Designation tc \l3 "(i) Trustees Emeritus
Designation . A Trustee who has reached the age of seventy two (72) years
may elect the status of Trustee Emeritus provided that the Trustee has served
for ten (10) years as a Trustee or on the board of trustees of another
investment company distributed, advised or administered by an entity under
common control with the Trusts distributor, investment adviser or
administrator. Upon reaching eighty (80) years of age, a Trustee must elect
status as a Trustee Emeritus. The provisions of this Section 3.1(i) shall
not be deemed to restrict a Trustees ability to resign.
(j) Trustees Emeritus Rights and Obligations tc \l3 "(j)
Trustees Emeritus Rights and Obligations . An individual designated as
a Trustee Emeritus may attend meetings of the Trustees. A Trustee Emeritus
shall have no voting rights and shall not be under a duty to manage or direct
the business and affairs of the Trust. A Trustee Emeritus shall not be
deemed to stand in a fiduciary relation to the Trust and shall not be
responsible to discharge the duties of a Trustee or to exercise that
diligence, care or skill which a Trustee would ordinarily be required to
exercise under applicable laws. In addition, a Trustee Emeritus shall be
indemnified to the full extent that an officer or Trustee of the Trust may be
indemnified under the Trusts governing documents and applicable state and
federal laws.
As long as an individual is a Trustee Emeritus, but in no event for
more than a period of ten (10) years, provided the Trust has net assets in
excess of $100 million, a Trustee Emeritus shall receive 50% of the annual
retainer and annual meeting fees paid to active Trustees. In any event, a
Trustee Emeritus shall be entitled to reasonable out-of-pocket expenses for
each meeting attended.
Section III.2 Powers of Trustees tc \l2 "Section III.2 Powers of
Trustees . Subject to the provisions of this Declaration of Trust, the
business of the Trust shall be managed by the Trustees, and they shall have
all powers necessary or convenient to carry out that responsibility and the
purpose of the Trust. Without limiting the foregoing, the Trustees may adopt
By-Laws not inconsistent with this Declaration of Trust providing for the
conduct of the business and affairs of the Trust and may amend and repeal
them to the extent that such By-Laws do not reserve that right to the
Shareholders; they may from time to time in accordance with the provisions of
Section 4.1 hereof establish Sub-Trusts, each such Sub-Trust to operate as a
separate and distinct investment medium and with separately defined
investment objectives and policies and distinct investment purpose; they may
from time to time in accordance with the provisions of Section 4.1 hereof
establish classes of Shares of any Series or Sub-Trust or divide the Shares
of any Series or Sub-Trust into classes; they may as they consider
appropriate elect and remove officers and appoint and terminate agents and
consultants and hire and terminate employees, any one or more of the
foregoing of whom may be a Trustee, and may provide for the compensation of
all of the foregoing; they may appoint from their own number, and terminate,
any one or more committees consisting of two or more Trustees, including
without implied limitation an executive committee, which may, when the
Trustees are not in session and subject to the 1940 Act, exercise some or all
of the power and authority of the Trustees as the Trustees may determine; in
accordance with Section 3.3 they may employ one or more advisers,
administrators, depositories and custodians and may authorize any depository
or custodian to employ subcustodians or agents and to deposit all or any part
of such assets in a system or systems for the central handling of securities
and debt instruments, retain transfer, dividend, accounting or shareholder
servicing agents or any of the foregoing, provide for the distribution of
Shares by the Trust through one or more distributors, principal underwriters
or otherwise, set record dates or times for the determination of Shareholders
or various of them with respect to various matters; they may compensate or
provide for the compensation of the Trustees, officers, advisers,
administrators, custodians, other agents, consultants and employees of the
Trust or the Trustees on such terms as they deem appropriate; and in general
they may delegate to any officer of the Trust, to any committee of the
Trustees and to any employee, adviser, administrator, distributor,
depository, custodian, transfer and dividend disbursing agent, or any other
agent or consultant of the Trust such authority, powers, functions and duties
as they consider desirable or appropriate for the conduct of the business and
affairs of the Trust, including without implied limitation the power and
authority to act in the name of the Trust and of the Trustees, to sign
documents and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with
the 1940 Act or other applicable law, the Trustees shall have power and
authority for and on behalf of the Trust and each separate Sub-Trust
established hereunder:
(a) Investments tc \l3 "(a) Investments . To invest and
reinvest cash and other property, and to hold cash or other property
uninvested without in any event being bound or limited by any present or
future law or custom in regard to investments by trustees;
(b) Disposition of Assets tc \l3 "(b) Disposition of Assets .
To sell, exchange, lend, pledge, mortgage, hypothecate, write options on and
lease any or all of the assets of the Trust;
(c) Ownership Xxxxxx xx \l3 "(c) Ownership Powers . To vote
or give assent, or exercise any rights of ownership, with respect to stock or
other securities, debt instruments or property; and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion
with relation to securities, debt instruments or property as the Trustees
shall deem proper;
(d) Subscription tc \l3 "(d) Subscription . To exercise
powers and rights of subscription or otherwise which in any manner arise out
of ownership of securities or debt instruments;
(e) Form of Holding tc \l3 "(e) Form of Holding . To hold
any security, debt instrument or property in a form not indicating any trust,
whether in bearer, unregistered or other negotiable form, or in the name of
the Trustees or of the Trust or of any Sub-Trust or in the name of a
custodian, subcustodian or other depository or a nominee or nominees or
otherwise;
(f) Reorganization, etc tc \l3 "(f) Reorganization, etc .
To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security or debt
instrument of which is or was held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or issuer,
and to pay calls or subscriptions with respect to any security or debt
instrument held in the Trust;
(g) Voting Trusts, etc tc \l3 "(g) Voting Trusts, etc .
To join with other holders of any securities or debt instruments in acting
through a committee, depository, voting trustee or otherwise, and in that
connection to deposit any security or debt instrument with, or transfer any
security or debt instrument to, any such committee, depository or trustee,
and to delegate to them such power and authority with relation to any
security or debt instrument (whether or not so deposited or transferred) as
the Trustees shall deem proper, and to agree to pay, and to pay, such portion
of the expenses and compensation of such committee, depository or trustee as
the Trustees shall deem proper;
(h) Compromise tc \l3 "(h) Compromise . To compromise,
arbitrate or otherwise adjust claims in favor of or against the Trust or any
Sub-Trust of any matter in controversy, including but not limited to claims
for taxes;
(i) Partnerships, etc tc \l3 "(i) Partnerships, etc . To enter
into joint ventures, general or limited partnerships and any other
combinations or associations;
(j) Borrowing and Security tc \l3 "(j) Borrowing and
Security . To borrow funds and to mortgage and pledge the assets of the
Trust or any part thereof to secure obligations arising in connection with
such borrowing;
(k) Guarantees, etc tc \l3 "(k) Guarantees, etc . To endorse
or guarantee the payment of any notes or other obligations of any person; to
make contracts of guaranty or suretyship, or otherwise assume liability for
payment thereof; and to mortgage and pledge the Trust property or any part
thereof to secure any of or all such obligations;
(l) Insurance tc \l3 "(l) Insurance . To purchase and pay
for entirely out of Trust property such insurance as they may deem necessary
or appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Trust and payment
of distributions and principal on its portfolio investments, and insurance
policies insuring the Shareholders, Trustees, officers, employees, agents,
consultants, investment advisers, managers, administrators, distributors,
principal underwriters, or independent contractors, or any thereof (or any
person connected therewith), of the Trust individually against all claims and
liabilities of every nature arising by reason of holding, being or having
held any such office or position, or by reason of any action alleged to have
been taken or omitted by any such person in any such capacity, including any
action taken or omitted that may be determined to constitute negligence
whether or not the Trust would have the power to indemnify such person
against such liability; and
(m) Pensions, etc tc \l3 "(m) Pensions, etc . To pay
pensions for faithful service, as deemed appropriate by the Trustees, and to
adopt, establish and carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive and benefit plans,
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.
Except as otherwise provided by the 1940 Act or other applicable law,
this Declaration of Trust or the By-Laws, any action to be taken by the
Trustees on behalf of the Trust or any Sub-Trust may be taken by a majority
of the Trustees present at a meeting of Trustees (a quorum, consisting of at
least a majority of the Trustees then in office, being present), within or
without Massachusetts, including any meeting held by means of a conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting,
or by written consents of a majority of the Trustees then in office (or such
larger or different number as may be required by the 1940 Act or other
applicable law).
Section III.3 Certain Contracts tc \l2 "Section III.3 Certain
Contracts . Subject to compliance with the provisions of the 1940 Act, but
notwithstanding any limitations of present and future law or custom in regard
to delegation of powers by trustees generally, the Trustees may, at any time
and from time to time and without limiting the generality of their powers and
authority otherwise set forth herein, enter into one or more contracts with
any one or more corporations, trusts, associations, partnerships, limited
partnerships, other types of organizations, or individuals (Contracting
Party), to provide for the performance and assumption of some or all of the
following services, duties and responsibilities to, for or on behalf of the
Trust, and/or any Sub-Trust, and/or the Trustees, and to provide for the
performance and assumption of such other services, duties and
responsibilities in addition to those set forth below as the Trustees may
determine appropriate:
(a) Advisory tc \l3 "(a) Advisory . Subject to the general
supervision of the Trustees and in conformity with the stated policy of the
Trustees with respect to the investments of the Trust or of the assets
belonging to any Sub-Trust of the Trust (as that phrase is defined in
subsection (a) of Section 4.2), to manage such investments and assets, make
investment decisions with respect thereto, and to place purchase and sale
orders for portfolio transactions relating to such investments and assets;
(b) Administration tc \l3 "(b) Administration . Subject to
the general supervision of the Trustees and in conformity with any policies
of the Trustees with respect to the operations of the Trust and each
Sub-Trust (including each class thereof), to supervise all or any part of the
operations of the Trust and each Sub-Trust and to provide all or any part of
the administrative and clerical personnel, office space and office equipment
and services appropriate for the efficient administration and operations of
the Trust and each Sub-Trust;
(c) Distribution tc \l3 "(c) Distribution . To distribute
the Shares of the Trust and each Sub-Trust (including any class thereof), to
be principal underwriter of such Shares, and/or to act as agent of the Trust
and each Sub-Trust in the sale of Shares and the acceptance or rejection of
orders for the purchase of Shares;
(d) Custodian and Depository tc \l3 "(d) Custodian and
Depository . To act as depository for and to maintain custody of the
property of the Trust and each Sub-Trust and accounting records in connection
therewith;
(e) Transfer and Dividend Disbursing Agency tc \l3 "(e)
Transfer and Dividend Disbursing Agency . To maintain records of the
ownership of outstanding Shares, the issuance and redemption and the transfer
thereof, and to disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the instructions of any
particular Shareholder to reinvest any such dividends;
(f) Shareholder Servicing tc \l3 "(f) Shareholder Servicing .
To provide service with respect to the relationship of the Trust and its
Shareholders, records with respect to Shareholders and their Shares and
similar matters; and
(g) Accounting tc \l3 "(g) Accounting . To handle all or any
part of the accounting responsibilities, whether with respect to the Trusts
properties, Shareholders or otherwise.
The same person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the Trust and/or the
Trustees, and the contracts with respect thereto may contain such terms
interpretive of or in addition to the delineation of the services, duties and
responsibilities provided for, including provisions that are not inconsistent
with the 1940 Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the Trustees may
determine. Nothing herein shall preclude, prevent or limit the Trust or a
Contracting Party from entering into sub-contractual arrangements relative to
any of the matters referred to in Sections 3.3(a) through (g) hereof.
The fact that:
(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 Contracting Party, or of or for any parent or affiliate of any
Contracting Party or that the Contracting Party or any parent or
affiliate thereof is a Shareholder or has an interest in the Trust or
any Sub-Trust, or that
(ii) any Contracting Party may have a contract providing
for the rendering of any similar services to one or more other
corporations, trusts, associations, partnerships, limited partnerships
or other organizations, or have other business or interests,
shall not affect the validity of any contract for the performance and
assumption of services, duties and responsibilities to, for or of the Trust
or any Sub-Trust and/or the Trustees or disqualify any Shareholder, Trustee
or officer of the Trust from voting upon or executing the same or create any
liability or accountability to the Trust, any Sub-Trust or its Shareholders,
provided that in the case of any relationship or interest referred to in the
preceding clause (i) on the part of any Trustee or officer of the Trust
either (x) the material facts as to such relationship or interest have been
disclosed to or are known by the Trustees not having any such relationship or
interest and the contract involved is approved in good faith by a majority of
such Trustees not having any such relationship or interest (even though such
unrelated or disinterested Trustees are less than a quorum of all of the
Trustees), (y) the material facts as to such relationship or interest and as
to the contract have been disclosed to or are known by the Shareholders
entitled to vote thereon and the contract involved is specifically approved
in good faith by vote of the Shareholders or (z) the specific contract
involved is fair to the Trust as of the time it is authorized, approved or
ratified by the Trustees or by the Shareholders.
Section III.4 Payment of Trust Expenses and Compensation of
Trustees tc \l2 "Section III.4 Payment of Trust Expenses and
Compensation of Trustees . The Trustees are authorized to pay or to cause to
be paid out of the principal or income of the Trust or any Sub-Trust, or
partly out of principal and partly out of income, and to charge or allocate
the same to, between or among such one or more of the Sub-Trusts and/or one
or more classes of Shares thereof that may be established and designated
pursuant to Article IV, as the Trustees deem fair, all expenses, fees,
charges, taxes and liabilities incurred or arising in connection with the
Trust, any Sub-Trust and/or any class of Shares thereof, or in connection
with the management thereof, including, but not limited to, the Trustees
compensation and such expenses and charges for the services of the Trusts
officers, employees, investment adviser, administrator, distributor,
principal underwriter, auditor, counsel, depository, custodian, transfer
agent, dividend disbursing agent, accounting agent, shareholder servicing
agent, and such other agents, consultants, and independent contractors and
such other expenses and charges as the Trustees may deem necessary or proper
to incur. Without limiting the generality of any other provision hereof, the
Trustee shall be entitled to reasonable compensation from the Trust for their
services as Trustees and may fix the amount of such compensation.
Section III.5 Ownership of Assets of the Trust tc \l2 "Section
III.5 Ownership of Assets of the Trust . Title to all of the assets of the
Trust shall at all times be considered as vested in the Trustees.
ARTICLE IV
SHARES tc \l1 "ARTICLE IV SHARES
Section IV.1 Description of Shares tc \l2 "Section IV.1
Description of Shares . The beneficial interest in the Trust shall be
divided into Shares, all with $.001 par value, but the Trustees shall have
the authority from time to time to issue Shares in one or more Series (each
of which Series of Shares shall represent the beneficial interest in a
separate and distinct Sub-Trust of the Trust, including without limitation
each Sub-Trust specifically established and designated in Section 4.2), as
they deem necessary or desirable. For all purposes under this Declaration of
Trust or otherwise, including, without implied limitation, (i) with respect
to the rights of creditors and (ii) for purposes of interpreting the relevant
rights of each Sub-Trust and the Shareholders of each Sub-Trust, each
Sub-Trust established hereunder shall be deemed to be a separate trust. The
Trustees shall have exclusive power without the requirement of Shareholder
approval to establish and designate such separate and distinct Sub-Trusts,
and to fix and determine the relative rights and preferences as between the
shares of the separate Sub-Trusts as to right of redemption and the price,
terms and manner of redemption, special and relative rights as to dividends
and other distributions and on liquidation, sinking or purchase fund
provisions, conversion rights, and conditions under which the several
Sub-Trusts shall have separate voting rights or no voting rights.
In addition, the Trustees shall have exclusive power, without the
requirement of Shareholder approval, to issue classes of Shares of any
Sub-Trust or divide the Shares of any Sub-Trust into classes, each class
having such different dividend, liquidation, voting and other rights as the
Trustees may determine, and may establish and designate the specific classes
of Shares of each Sub-Trust. The fact that a Sub-Trust shall have initially
been established and designated without any specific establishment or
designation of classes (i.e., that all Shares of such Sub-Trust are initially
of a single class), or that a Sub-Trust shall have more than one established
and designated class, shall not limit the authority of the Trustees to
establish and designate separate classes, or one or more further classes, of
said Sub-Trust without approval of the holders of the initial class thereof,
or previously established and designated class or classes thereof, provided
that the establishment and designation of such further separate classes would
not adversely affect the rights of the holders of the initial or previously
established and designated class.
The number of authorized Shares and the number of Shares of each
Sub-Trust or class thereof that may be issued is unlimited, and the Trustees
may issue Shares of any Sub-Trust or class thereof for such consideration and
on such terms as they may determine (or for no consideration if pursuant to a
Share dividend or split-up), all without action or approval of the
Shareholders. All Shares when so issued on the terms determined by the
Trustees shall be fully paid and non-assessable (but may be subject to
mandatory contribution back to the Trust as provided in subsection (h) of
Section 4.2). The Trustees may classify or reclassify any unissued Shares or
any Shares previously issued and reacquired of any Sub-Trust or class thereof
into one or more Sub-Trusts or classes thereof that may be established and
designated from time to time. The Trustees may hold as treasury Shares,
reissue for such consideration and on such terms as they may determine, or
cancel, at their discretion from time to time, any Shares of any Sub-Trust or
class thereof reacquired by the Trust.
The Trustees may from time to time close the transfer books, or
establish record dates and times for the purposes of determining the holders
of Shares entitled to be treated as such, to the extent provided or referred
to in Section 5.3.
The establishment and designation of any Sub-Trust or of any class of
Shares of any Sub-Trust in addition to those established and designated in
Section 4.2 shall be effective (i) upon the execution by a majority of the
then Trustees of an instrument setting forth such establishment and
designation of the relative rights and preferences of the Shares of such
Sub-Trust or class, (ii) upon the execution of an instrument in writing by an
officer of the Trust pursuant to the vote of a majority of the Trustees, or
(iii) as otherwise provided in either such instrument. At any time that
there are no Shares outstanding of any particular Sub-Trust or class
previously established and designated, the Trustees may by an instrument
executed by a majority of their number (or by an instrument executed by an
officer of the Trust pursuant to the vote of a majority of the Trustees)
abolish that Sub-Trust or class and the establishment and designation
thereof. Each instrument referred to in this paragraph shall have the status
of an amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any organization
in which any such person is interested, may acquire, own, hold and dispose of
Shares of any Sub-Trust (including any classes thereof) of the Trust to the
same extent as if such person were not a Trustee, officer or other agent of
the Trust; and the Trust may issue and sell or cause to be issued and sold
and may purchase Shares of any Sub-Trust (including any classes thereof) from
any such person or any such organization subject only to the general
limitations, restrictions or other provisions applicable to the sale or
purchase of Shares of such Sub-Trust including any classes thereof generally.
Section IV.2 Establishment and Designation of Sub-Trusts tc \l2
"Section IV.2 Establishment and Designation of Sub-Trusts . Without
limiting the authority of the Trustees set forth in Section 4.1 to establish
and designate any further Sub-Trusts and classes, the Trustees hereby
establish and designate the following Sub-Trusts and classes thereof: Xxxxx
Xxxxxx Intermediate Maturity California Municipals Fund, Xxxxx Xxxxxx
Intermediate Maturity New York Municipals Fund, Xxxxx Xxxxxx Large
Capitalization Growth Fund and Xxxxx Xxxxxx S&P 500 Index Fund each of which
shall consist of four classes designated as Class A, Class B, Class C and
Class Y Shares and solely with respect to the Xxxxx Xxxxxx S&P 500 Index
Fund, an additional class designated as Class D Shares. The Shares of such
Sub-Trusts and classes thereof and any Shares of any further Sub-Trusts or
classes that may from time to time be established and designated by the
Trustees shall (unless the Trustees otherwise determine with respect to some
further Sub-Trust or class at the time of establishing and designating the
same) have the following relative rights and preferences:
(a) Assets Belonging to Sub-Trusts tc \l3 "(a) Assets
Belonging to Sub-Trusts . All consideration received by the Trust for the
issue or sale of Shares of a particular Sub-Trust or any classes thereof,
together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof, including
any proceeds derived from the sale, exchange or liquidation of such assets,
and any funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall be held by the Trustees in trust for the
benefit of the holders of Shares of that Sub-Trust or class thereof and shall
irrevocably belong to that Sub-Trust (and be allocable to any classes
thereof) for all purposes, and shall be so recorded upon the books of account
of the Trust. Such consideration, assets, income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may be, together
with any General Items allocated to that Sub-Trust as provided in the
following sentence, are herein referred to as assets belonging to that
Sub-Trust (and allocable to any classes thereof). In the event that there
are any assets, income, earnings, profits, and proceeds thereof, funds, or
payments which are not readily identifiable as belonging to any particular
Sub-Trust (collectively General Items), the Trustees shall allocate such
General Items to and among any one or more of the Sub-Trusts established and
designated from time to time in such manner and on such basis as they, in
their sole discretion, deem fair and equitable; and any General Items so
allocated to a particular Sub-Trust shall belong to that Sub-Trust (and be
allocable to any classes thereof). Each such allocation by the Trustees
shall be conclusive and binding upon the Shareholders of all Sub-Trusts
(including any classes thereof) for all purposes.
(b) Liabilities Belonging to Sub-Trusts tc \l3 "(b) Liabilities
Belonging to Sub-Trusts . The assets belonging to each particular Sub-Trust
shall be charged with the liabilities in respect of that Sub-Trust and all
expenses, costs, charges and reserves attributable to that Sub-Trust, and any
general liabilities, expenses, costs, charges or reserves of the Trust which
are not readily identifiable as belonging to any particular Sub-Trust shall
be allocated and charged by the Trustees to and among any one or more of the
Sub-Trusts established and designated from time to time in such manner and on
such basis as the Trustees in their sole discretion deem fair and equitable.
In addition, the liabilities in respect of a particular class of Shares of a
particular Sub-Trust and all expenses, costs, charges and reserves belonging
to that class of Shares, and any general liabilities, expenses, costs,
charges or reserves of that particular Sub-Trust which are not readily
identifiable as belonging to any particular class of Shares of that Sub-Trust
shall be allocated and charged by the Trustees to and among any one or more
of the classes of Shares of that Sub-Trust established and designated from
time to time in such manner and on such basis as the Trustees in their sole
discretion deem fair and equitable. The liabilities, expenses, costs,
charges and reserves allocated and so charged to a Sub-Trust or class thereof
are herein referred to as liabilities belonging to that Sub-Trust or class
thereof. Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the
Shareholders, creditors and any other persons dealing with the Trust or any
Sub-Trust (including any classes thereof) for all purposes. Any creditor of
any Sub-Trust may look only to the assets of that Sub-Trust to satisfy such
creditors debt.
(c) Dividends tc \l3 "(c) Dividends . Dividends and
distributions on Shares of a particular Sub-Trust or any class thereof may be
paid with such frequency as the Trustees may determine, which may be daily or
otherwise pursuant to a standing resolution or resolutions adopted only once
or with such frequency as the Trustees may determine, to the holders of
Shares of that Sub-Trust or class, from such of the income and capital gains,
accrued or realized, from the assets belonging to that Sub-Trust, or in the
case of a class, belonging to that Sub-Trust and allocable to that class, as
the Trustees may determine, after providing for actual and accrued
liabilities belonging to that Sub-Trust or class. All dividends and
distributions on Shares of a particular Sub-Trust or class thereof shall be
distributed pro rata to the holders of Shares of that Sub-Trust or class in
proportion to the number of Shares of that Sub-Trust or class held by such
holders at the date and time of record established for the payment of such
dividends or distributions, except that in connection with any dividend or
distribution program or procedure the Trustees may determine that no dividend
or distribution shall be payable on Shares as to which the Shareholders
purchase order and/or payment have not been received by the time or times
established by the Trustees under such program or procedure. Such dividends
and distributions may be made in cash or Shares of that Sub-Trust or class or
a combination thereof as determined by the Trustees or pursuant to any
program that the Trustees may have in effect at the time for the election by
each Shareholder of the mode of the making of such dividend or distribution
to that Shareholder. Any such dividend or distribution paid in Shares will
be paid at the net asset value thereof as determined in accordance with
subsection (h) of Section 4.2.
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.
(d) Liquidation tc \l3 "(d) Liquidation . In the event of the
liquidation or dissolution of the Trust, the Shareholders of each Sub-Trust
or any class thereof that has been established and designated shall be
entitled to receive, when and as declared by the Trustees, the excess of the
assets belonging to that Sub-Trust, or in the case of a class, belonging to
that Sub-Trust and allocable to that class, over the liabilities belonging to
that Sub-Trust or class. The assets so distributable to the Shareholders of
any particular Sub-Trust or class thereof shall be distributed among such
Shareholders in proportion to the number of Shares of that Sub-Trust or class
thereof held by them and recorded on the books of the Trust. The liquidation
of any particular Sub-Trust or class thereof may be authorized by vote of a
majority of the Trustees then in office subject to the approval of a majority
of the outstanding voting Shares of that Sub-Trust, as defined in the 1940
Act.
(e) Voting tc \l3 "(e) Voting . On each matter submitted
to a vote of the Shareholders, each holder of a Share of each Sub-Trust or
class thereof shall be entitled to one vote for each whole Share and to a
proportionate fractional vote for each fractional Share standing in his name
on the books of the Trust. The Trustees shall cause each matter required or
permitted to be voted upon at a meeting or by written consent of Shareholders
to be submitted to a vote of all Sub-Trusts and classes thereof entitled to
vote thereon (irrespective of class), unless the 1940 Act or other applicable
laws or regulations require that the actions of the Shareholders be taken by
a separate vote of one or more Sub-Trusts or classes thereof, or the Trustees
determine that any matter to be submitted to a vote of Shareholders affects
only the rights or interests of one or more (but not all) Sub-Trusts or
classes thereof, in which case only the Shareholders of the Sub-Trust or
Sub-Trusts or class or classes so affected shall be entitled to vote thereon.
(f) Redemption by Shareholder tc \l3 "(f) Redemption by
Shareholder . Each holder of Shares of a particular Sub-Trust or any class
thereof shall have the right at such times as may be permitted by the Trust,
but no less frequently than once each week, to require the Trust to redeem
all or any part of his Shares of that Sub-Trust or class thereof at a
redemption price equal to the net asset value per Share of that Sub-Trust or
class thereof next determined in accordance with subsection (h) of this
Section 4.2 after the Shares are properly tendered for redemption. Payment
of the redemption price shall be in cash; provided, however, that if the
Trustees determine, which determination shall be conclusive, that conditions
exist which make payment wholly in cash unwise or undesirable, the Trust may
make payment wholly or partly in securities or other assets belonging to the
Sub-Trust of which the Shares being redeemed are part at the value of such
securities or assets used in such determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of any
Sub-Trust or class thereof to require the Trust to redeem Shares of that
Sub-Trust during any period or at any time when and to the extent permissible
under the 1940 Act.
(g) Redemption by Trust tc \l3 "(g) Redemption by Trust .
Each Share of each Sub-Trust or class thereof that has been established and
designated is subject to redemption by the Trust at the redemption price
which would be applicable if such Share was then being redeemed by the
Shareholder pursuant to subsection (f) of this Section 4.2: (a) at any time,
if the Trustees determine in their sole discretion that failure to so redeem
may have materially adverse consequences to the holders of the Shares of the
Trust or any Sub-Trust thereof or class thereof, or (b) upon such other
conditions as may from time to time be determined by the Trustees and set
forth in the then current Prospectus of the Trust with respect to maintenance
of Shareholder accounts of a minimum amount. Upon such redemption the
holders of the Shares so redeemed shall have no further right with respect
thereto other than to receive payment of such redemption price.
(h) Net Asset Value tc \l3 "(h) Net Asset Value . The net
asset value per Share of any Sub-Trust shall be (i) in the case of a
Sub-Trust whose Shares are not divided into classes, the quotient obtained by
dividing the value of the net assets of that Sub-Trust (being the value of
the assets belonging to that Sub-Trust less the liabilities belonging to that
Sub-Trust) by the total number of Shares of that Sub-Trust outstanding, and
(ii) in the case of a class of Shares of a Sub-Trust whose Shares are divided
into classes, the quotient obtained by dividing the value of the net assets
of that Sub-Trust allocable to such class (being the value of the assets
belonging to that Sub-Trust allocable to such class less the liabilities
belonging to such class) by the total number of Shares of such class
outstanding; all determined in accordance with the methods and procedures,
including without limitation those with respect to rounding, established by
the Trustees from time to time.
The Trustees may determine to maintain the net asset value per Share of
any Sub-Trust at a designated constant dollar amount and in connection
therewith may adopt procedures not inconsistent with the 1940 Act for the
continuing declarations of income attributable to that Sub-Trust as dividends
payable in additional Shares of that Sub-Trust at the designated constant
dollar amount and for the handling of any losses attributable to that
Sub-Trust. Such procedures may provide that in the event of any loss each
Shareholder shall be deemed to have contributed to the capital of the Trust
attributable to that Sub-Trust his pro rata portion of the total number of
Shares required to be canceled in order to permit the net asset value per
Share of that Sub-Trust to be maintained, after reflecting such loss, at the
designated constant dollar amount. Each Shareholder of the Trust shall be
deemed to have agreed, by his investment in any Sub-Trust with respect to
which the Trustees shall have adopted any such procedure, to make the
contribution referred to in the preceding sentence in the event of any such
loss.
(i) Transfer tc \l3 "(i) Transfer . All Shares of each
particular Sub-Trust or class thereof shall be transferable, but transfers of
Shares of a particular Sub-Trust or class thereof will be recorded on the
Share transfer records of the Trust applicable to that Sub-Trust or class
only at such times as Shareholders shall have the right to require the Trust
to redeem Shares of that Sub-Trust or class and at such other times as may be
permitted by the Trustees.
(j) Equality tc \l3 "(j) Equality . Except as provided
herein or in the instrument designating and establishing any class of Shares
or any Sub-Trust, all Shares of each particular Sub-Trust or class thereof
shall represent an equal proportionate interest in the assets belonging to
that Sub-Trust, or in the case of a class, belonging to that Sub-Trust and
allocable to that class, subject to the liabilities belonging to that
Sub-Trust or class, and each Share of any particular Sub-Trust or class shall
be equal to each other Share of that Sub-Trust or class; but the provisions
of this sentence shall not restrict any distinctions permissible under
subsection (c) of this Section 4.2 that may exist with respect to dividends
and distributions on Shares of the same Sub-Trust or class. The Trustees may
from time to time divide or combine the Shares of any particular Sub-Trust or
class into a greater or lesser number of Shares of that Sub-Trust or class
without thereby changing the proportionate beneficial interest in the assets
belonging to that Sub-Trust or class or in any way affecting the rights of
Shares of any other Sub-Trust or class.
(k) Fractions tc \l3 "(k) Fractions . Any fractional Share
of any Sub-Trust or class, if any such fractional Share is outstanding, shall
carry proportionately all the rights and obligations of a whole Share of that
Sub-Trust or class, including rights and obligations with respect to voting,
receipt of dividends and distributions, redemption of Shares, and liquidation
of the Trust.
(l) Conversion Rights tc \l3 "(l) Conversion Rights . Subject
to compliance with the requirements of the 1940 Act, the Trustees shall have
the authority to provide that holders of Shares of any Sub-Trust or class
thereof shall have the right to convert said Shares into Shares of one or
more other Sub-Trust or class thereof in accordance with such requirements
and procedures as may be established by the Trustees.
(m) Class Differences tc \l3 "(m) Class Differences . The
relative rights and preferences of the classes of any Sub-Trust may differ in
such other respects as the Trustees may determine to be appropriate in their
sole discretion, provided that such differences are set forth in the
instrument establishing and designating such classes and executed by a
majority of the Trustees (or by an instrument executed by an officer of the
Trust pursuant to a vote of a majority of the Trustees).
Section IV.3 Ownership of Shares tc \l2 "Section IV.3 Ownership
of Shares . The ownership of Shares shall be recorded on the books of the
Trust or of a transfer or similar agent for the Trust, which books shall be
maintained separately for the Shares of each Sub-Trust and each class thereof
that has been established and designated. No certificates certifying the
ownership of Shares need be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they
consider appropriate for the issuance of Shares certificates, the use of
facsimile signatures, the transfer of Shares and similar matters. The record
books of the Trust as kept by the Trust or any transfer or similar agent, as
the case may be, shall be conclusive as to who are the Shareholders and as to
the number of Shares of each Sub-Trust and class thereof held from time to
time by each such Shareholder.
Section IV.4 Investments in the Trust tc \l2 "Section IV.4
Investments in the Trust . The Trustees may accept investments in the
Trust and each Sub-Trust thereof from such persons and on such terms and for
such consideration, not inconsistent with the provisions of the 1940 Act, as
they authorize from time to time. The Trustees may authorize any
distributor, principal underwriter, custodian, transfer agent or other
person to accept orders for the purchase of Shares that conform to such
authorized terms and to reject any purchase orders for Shares whether or not
conforming to such authorized terms.
Section IV.5 No Pre-emptive Rights tc \l2 "Section IV.5 No
Pre-emptive Rights . Shareholders shall have no pre-emptive or other right
to subscribe to any additional Shares or other securities issued by the
Trust.
Section IV.6 Status of Shares and Limitation of Personal
Liability tc \l2 "Section IV.6 Status of Shares and Limitation of
Personal Liability . Shares shall be deemed to be personal property giving
only the rights provided in this instrument. Every Shareholder by virtue of
having become a Shareholder shall be held to have expressly assented and
agreed to the terms hereof and to have become a party hereto. The death of a
Shareholder during the continuance of the Trust shall not operate to
terminate the Trust or any Sub-Trust thereof nor entitle the representative
of any deceased Shareholder to an accounting or to take any action in court
or elsewhere against the Trust or the Trustees, but only to the rights of
said decedent under this Trust. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Trust property
or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust shall have any power to bind personally any Shareholder,
nor except as specifically provided herein to call upon any Shareholder for
the payment of any sum of money or assessment whatsoever other than such as
the Shareholder may at any time personally agree to pay.
ARTICLE V
SHAREHOLDERS VOTING POWERS AND MEETINGS tc \l1 "ARTICLE V
SHAREHOLDERS VOTING POWERS AND MEETINGS
Section V.1 Voting Xxxxxx xx \l2 "Section V.1 Voting Powers . The
Shareholders shall have power to vote only (i) for the election or removal of
Trustees as provided in Section 3.1, (ii) with respect to any contract with a
Contracting Party as provided in Section 3.3 as to which Shareholder approval
is required by the 1940 Act, (iii) with respect to any termination or
reorganization of the Trust or any Sub-Trust to the extent and as provided in
Sections 7.1 and 7.2, (iv) with respect to any amendment of this Declaration
of Trust to the extent and as provided in Section 7.3, (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 or should not be brought or
maintained derivatively or as a class action on behalf of the Trust or any
Sub-Trust thereof or the Shareholders (provided, however, that a shareholder
of a particular Sub-Trust shall not be entitled to a derivative or class
action on behalf of any other Sub-Trust (or shareholder of any other
Sub-Trust) of the Trust) and (vi) with respect to such additional matters
relating to the Trust as may be required by the 1940 Act, this Declaration of
Trust, the By-Laws or any registration of the Trust with the Commission (or
any successor agency) or any state, or as the Trustees may consider necessary
or desirable. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy. A proxy with respect
to Shares held in the name of two or more persons shall be valid if executed
by any one of them unless at or prior to exercise of the proxy the Trust
receives a specific written notice to the contrary from any one of them. A
proxy purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger. Until Shares are issued,
the Trustees may exercise all rights of Shareholders and may take any action
required by law, this Declaration of Trust or the By-Laws to be taken by
Shareholders.
Section V.2 Meetings tc \l2 "Section V.2 Meetings . Meetings of
Shareholders may be called by the Trustees from time to time for the purpose
of taking action upon any matter requiring the vote or authority of the
Shareholders as herein provided or upon any other matter deemed by the
Trustees to be necessary or desirable. Written notice of any meeting of
Shareholders shall be given or caused to be given by the Trustees by mailing
such notice at least seven days before such meeting, postage prepaid, stating
the time, place and purpose of the meeting, to each Shareholder at the
Shareholders address as it appears on the records of the Trust. The Trustees
shall promptly call and give notice of a meeting of Shareholders for the
purpose of voting upon removal of any Trustee of the Trust when requested to
do so in writing by Shareholders holding not less than 10% of the Shares then
outstanding. If the Trustees 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 Shares then outstanding requesting a
meeting be called for any other purpose requiring action by the Shareholders
as provided herein or in the By-Laws, then Shareholders holding at least 10%
of the Shares then outstanding may call and give notice of such meeting, and
thereupon the meeting shall be held in the manner provided for herein in case
of call thereof by the Trustees.
Section V.3 Record Dates tc \l2 "Section V.3 Record Dates . For the
purpose of determining the Shareholders who are entitled to vote or act at
any meeting or any adjournment thereof, or who are entitled to participate in
any dividend or distribution, or for the purpose of any other action, the
Trustees may from time to time close the transfer books for such period, not
exceeding 30 days (except at or in connection with the termination of the
Trust), as the Trustees may determine; or without closing the transfer books
the Trustees may fix a date and time not more than 60 days prior to the date
of any meeting of Shareholders or other action as the date and time of record
for the determination of Shareholders entitled to vote at such meeting or any
adjournment thereof or to be treated as Shareholders of record for purposes
of such other action, and any shareholder who was a Shareholder at the date
and time so fixed shall be entitled to vote at such meeting or any
adjournment thereof or to be treated as a Shareholder of record for purposes
of such other action, even though he has since that date and time disposed of
his Shares, and no Shareholder becoming such after that date and time shall
be so entitled to vote at such meeting or any adjournment thereof or to be
treated as a Shareholder of record for purposes of such other action.
Section V.4 Quorum and Required Vote tc \l2 "Section V.4 Quorum and
Required Vote . A majority of the Shares entitled to vote shall be a quorum
for the transaction of business at a Shareholders meeting, but any lesser
number shall be sufficient for adjournments. Any adjourned session or
sessions may be held, within a reasonable time after the date set for the
original meeting without the necessity of further notice. A majority of the
Shares voted, at a meeting of which a quorum is present, shall decide any
questions and a plurality shall elect a Trustee, except when a different vote
is required or permitted by any provision of the 1940 Act or other applicable
law or by this Declaration of Trust or the By-Laws.
Section V.5 Action by Written Consent tc \l2 "Section V.5 Action by
Written Consent . Subject to the provisions of the 1940 Act and other
applicable law, any action taken by Shareholders may be taken without a
meeting if a majority of Shareholders entitled to vote on the matter (or such
larger proportion thereof as shall be required by the 1940 Act or by any
express provision of this Declaration of Trust or the By-Laws) consent to the
action in writing and such written consents are filed with the records of the
meetings of Shareholders. Such consent shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
Section V.6 Inspection of Records tc \l2 "Section V.6 Inspection of
Records . The records of the Trust shall be open to inspection by
Shareholders to the same extent as is permitted stockholders of a
Massachusetts business corporation under the Massachusetts Business
Corporation Law.
Section V.7 Additional Provisions tc \l2 "Section V.7 Additional
Provisions . The By-Laws may include further provisions for Shareholders
votes and meeting and related matters not inconsistent with the provisions
hereof.
Section V.8 Shareholder Communications tc \l2 "Section V.8 Shareholder
Communications . Whenever ten or more Shareholders of record who have been
such for at least six months preceding the date of application, and who hold
in the aggregate either Shares having a net asset value of at least $25,000
or at least 1% of the outstanding Shares, whichever is less, shall apply to
the Trustees in writing, stating that they wish to communicate with other
Shareholders with a view to obtaining signatures to a request for a
Shareholder meeting and accompanied by a form of communication and request
which they wish to transmit, the Trustees shall within five business days
after receipt of such application either (i) afford to such applicants access
to a list of the names and addresses of all Shareholders as recorded on the
books of the Trust or (ii) inform such applicants as to the approximate
number of Shareholders of record, and the approximate cost of mailing to them
the proposed communication and form of request.
If the Trustees elect to follow the course specified in item (ii)
above, the Trustees, upon the written request of such applicants, accompanied
by a tender of the material to be mailed and of the reasonable expense of
mailing, shall, with reasonable promptness, mail such material to all
Shareholders of record at their addresses as recorded on the books unless
within five business days after such tender the Trustees shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement signed by at least a majority of the
Trustees to the effect that in their opinion either such material contains
untrue statements of fact or omits to state facts necessary to make the
statements contained therein not misleading, or would be in violation of
applicable law, and specifying the basis of such opinion. The Trustees shall
thereafter comply with the requirements of the 1940 Act.
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION tc \l1 "ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
Section VI.1 Trustees, Shareholders, etc. Not Personally Liable;
Notice tc \l2 "Section VI.1 Trustees, Shareholders, etc. Not Personally
Liable; Notice . All persons extending credit to, contracting with or having
any claim against the Trust shall look only to the assets of the Sub-Trust
with which such person dealt for payment under such credit, contract or
claim; and neither the Shareholders of any Sub-Trust nor the Trustees nor any
of the Trusts officers, employees or agents, whether past, present or future,
nor any other Sub-Trust shall be personally liable therefor. Every note,
bond, contract, instrument, certificate or undertaking and every other act or
thing whatsoever executed or done by or on behalf of the Trust, any Sub-Trust
or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been executed or done only by or for the Trust
(or the Sub-Trust) or the Trustees and not personally. Nothing in this
Declaration of Trust shall protect any Trustee or officer against any
liability to the Trust or the Shareholders to which such Trustee or officer
would otherwise be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee or of such officer.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officers or officer shall give notice
that this Declaration of Trust is on file with the Secretary of The
Commonwealth of Massachusetts and shall recite to the effect that the same
was executed or made by or on behalf of the Trust or by them as Trustees or
Trustee or as officers or officer and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property
of the Trust, or the particular Sub-Trust in question, as the case may be,
but the omission thereof shall not operate to bind any Trustees or Trustee or
officers or officer or Shareholders or Shareholder individually.
Section VI.2 Trustees Good Faith Action; Expert Advice; No Bond or
Surety tc \l2 "Section VI.2 Trustees Good Faith Action; Expert Advice; No
Bond or Surety . The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested. A Trustee
shall be liable for his own wilful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of judgment
or mistakes of fact or law. Subject to the foregoing, (a) the Trustees shall
not be responsible or liable in any event for any neglect or wrongdoing of
any officer, agent, employee, consultant, adviser, administrator, distributor
or principal underwriter, custodian or transfer, dividend disbursing,
shareholder servicing or accounting agent of the Trust, nor shall any Trustee
be responsible for the act or omission of any other Trustee; (b) the Trustees
may take advice of counsel or other experts with respect to the meaning and
operation of this Declaration of Trust and their duties as Trustees, and
shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice; and (c) in discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely
upon the books of account of the Trust and upon written reports made to the
Trustees by any officer appointed by them, any independent public accountant,
and (with respect to the subject matter of the contract involved) any
officer, partner or responsible employee of a Contracting Party appointed by
the Trustees pursuant to Section 3.3. The Trustees as such shall not be
required to give any bond or surety or any other security for the performance
of their duties.
Section VI.3 Indemnification of Shareholders tc \l2 "Section VI.3
Indemnification of Shareholders . In case any Shareholder (or former
Shareholder) of any Sub-Trust of the Trust shall be charged or held to be
personally liable for any obligation or liability of the Trust solely by
reason of being or having been a Shareholder and not because of such
Shareholders acts or omissions or for some other reason, said Sub-Trust (upon
proper and timely request by the Shareholder) shall assume the defense
against such charge and satisfy any judgment thereon, and the Shareholder or
former Shareholder (or 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 out of the assets of
said Sub-Trust estate to be held harmless from and indemnified against all
loss and expense arising from such liability.
Section VI.4 Indemnification of Trustees, Officers, etc. tc \l2
"Section VI.4 Indemnification of Trustees, Officers, etc. The Trust
shall indemnify (from the assets of the Sub-Trust or Sub-Trusts in question)
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,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and expenses, including reasonable
accountants and counsel fees, incurred by any Covered Person in connection
with the defense or disposition of any action, suit or other proceeding,
whether civil or criminal, before any court or administrative or legislative
body, in which such Covered Person may be or may have been involved as a
party or otherwise or with which such person may be or may have been
threatened, while in office or thereafter by reason of being or having been
such a Trustee or officer, director or trustee, except with respect to any
matter as to which it has been determined that such Covered Person (i) did
not act in good faith in the reasonable belief that such Covered Persons
action was in or not opposed to the best interests of the Trust or (ii) had
acted with wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered Persons
office (either and both of the conduct described in (i) and (ii) being
referred to hereafter as Disabling Conduct). A determination that the
Covered Person is entitled to indemnification may be made by (i) a final
decision on the merits by a court or other body before whom the proceeding
was brought that the person to be indemnified was not liable by reason of
Disabling Conduct, (ii) dismissal of a court action or an administrative
proceeding against a Covered Person for insufficiency of evidence of
Disabling Conduct or (iii) a reasonable determination, based upon a review of
the facts, that the indemnitee was not liable by reason of Disabling Conduct
by (a) a vote of a majority of a quorum of Trustees who are neither
interested persons of the Trust as defined in section 2(a)(19) of the 1940
Act nor parties to the proceeding or (b) an independent legal counsel in a
written opinion. Expenses, including accountants and counsel fees so
incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may be
paid from time to time by the Sub-Trust in question in advance of the final
disposition of any such action, suit or proceeding, provided that the Covered
Person shall have undertaken to repay the amounts so paid to the Sub-Trust in
question if it is ultimately determined that indemnification of such expenses
is not authorized under this Article VI and (i) the Covered Person shall have
provided security for such undertaking, (ii) the Trust shall be insured
against losses arising by reason of any lawful advances or (iii) a majority
of a quorum of the disinterested Trustees who are not a party to the
proceeding, or an independent legal counsel in a written opinion, shall have
determined, based on a review of readily available facts (as opposed to a
full trial-type inquiry), that there is reason to believe that the Covered
Person ultimately will be found entitled to indemnification.
Section VI.5 Compromise Payment tc \l2 "Section VI.5 Compromise
Payment . As to any matter disposed of by a compromise payment by any such
Covered Person referred to in Section 6.4, pursuant to a consent decree or
otherwise, no such indemnification either for said payment or for any other
expenses shall be provided unless such indemnification shall be approved (a)
by a majority of the disinterested Trustees who are not a party to the
proceeding or (b) by an independent legal counsel in a written opinion.
Approval by the Trustees pursuant to clause (a) or by independent legal
counsel pursuant to clause (b) shall not prevent the recovery from any
Covered Person of any amount paid to such Covered Person in accordance with
any of such clauses as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have acted in good
faith in the reasonable belief that such Covered Persons action was in or not
opposed to the best interests of the Trust or to have been liable to the
Trust or its Shareholders by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of
such Covered Persons office.
Section VI.6 Indemnification Not Exclusive, etc. tc \l2 "Section
VI.6 Indemnification Not Exclusive, etc. The right of indemnification
provided by this Article VI shall not be exclusive of or affect any other
rights to which any such Covered Person may be entitled. As used in this
Article VI, Covered Person shall include such persons heirs, executors and
administrators, an interested Covered Person is one against whom the action,
suit or other proceeding in question or another action, suit or other
proceeding on the same or similar grounds is then or has been pending or
threatened, and a disinterested person is a person against whom none of such
actions, suits or other proceedings or another action, suit or other
proceeding on the same or similar grounds is then or has been pending or
threatened. Nothing contained in this article 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 any such person.
Section VI.7 Liability of Third Persons Dealing with Trustees tc
\l2 "Section VI.7 Liability of Third Persons Dealing with Trustees . No
person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the Trustees
or to see to the application of any payments made or property transferred to
the Trust or upon its order.
ARTICLE VII
MISCELLANEOUS tc \l1 "ARTICLE VII MISCELLANEOUS
Section VII.1 Duration and Termination of Trust tc \l2 "Section
VII.1 Duration and Termination of Trust . Unless terminated as provided
herein, the Trust shall continue without limitation of time and, without
limiting the generality of the foregoing, no change, alteration or
modification with respect to any Sub-Trust or class thereof shall operate to
terminate the Trust. The Trust may be terminated at any time by a majority
of the Trustees then in office subject to a favorable vote of a majority of
the outstanding voting securities, as defined in the 1940 Act, Shares of each
Sub-Trust voting separately by Sub-Trust.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may
be determined by the Trustees, the Trust shall in accordance with such
procedures as the Trustees consider appropriate reduce the remaining assets
to distributable form in cash, securities or other property, or any
combination thereof, and distribute the proceeds to the Shareholders, in
conformity with the provisions of subsection (d) of Section 4.2.
Section VII.2 Reorganization tc \l2 "Section VII.2
Reorganization . The Trustees may sell, convey, merge and transfer the
assets of the Trust, or the assets belonging to any one or more Sub-Trusts,
to another trust, partnership, association or corporation organized under the
laws of any state of the United States, or to the Trust to be held as assets
belonging to another Sub-Trust, in exchange for cash, shares or other
securities (including, in the case of a transfer to another Sub-Trust of the
Trust, Shares of such other Sub-Trust or any class thereof) with such
transfer being made subject to, or with the assumption by the transferee of,
the liabilities belonging to each Sub-Trust the assets of which are so
transferred; provided, however, that no assets belonging to any particular
Sub-Trust shall be so transferred unless the terms of such transfer shall
have first been approved at a meeting called for the purpose by the
affirmative vote of the holders of a majority of the outstanding voting
Shares, as defined in the 1940 Act, of that Sub-Trust. Following such
transfer, the Trustees shall distribute such cash, shares or other securities
(taking into account the differences among the classes of Shares thereof, if
any, and giving due effect to the assets and liabilities belonging to and any
other differences among the various Sub-Trusts the assets belonging to which
have so been transferred) among the Shareholders of the Sub-Trust the assets
belonging to which have been so transferred; and if all of the assets or the
Trust have been so transferred, the Trust shall be terminated.
Section VII.3 Amendments tc \l2 "Section VII.3 Amendments . All
rights granted to the Shareholders under this Declaration of Trust are
granted subject to the reservation of the right to amend this Declaration of
Trust as herein provided, except that no amendment shall repeal the
limitations on personal liability of any Shareholder or Trustee or repeal the
prohibition of assessment upon the Shareholders without the express consent
of each Shareholder or Trustee involved. Subject to the foregoing, the
provisions of this Declaration of Trust (whether or not related to the rights
of Shareholders) may be amended at any time, so long as such amendment does
not adversely affect the rights of any Shareholder with respect to which such
amendment is or purports to be applicable and so long as such amendment is
not in contravention of applicable law, including the 1940 Act, by an
instrument in writing signed by a majority of the then Trustees (or by an
officer of the Trust pursuant to the vote of a majority of such Trustees).
Any amendment to this Declaration of Trust that adversely affects the rights
of Shareholders may be adopted at any time by an instrument in writing signed
by a majority of the then Trustees (or by an officer of the Trust pursuant to
the vote of a majority of such Trustees) when authorized to do so by the vote
in accordance with subsection (e) of Section 4.2 of Shareholders holding a
majority of the Shares entitled to vote. Subject to the foregoing, any such
amendment shall be effective as provided in the instrument containing the
terms of such amendment or, if there is no provision therein with respect to
effectiveness, upon the execution of such instrument and of a certificate
(which may be a part of such instrument) executed by a Trustee or officer of
the Trust to the effect that such amendment has been duly adopted.
Section VII.4 Filing of Copies; References; Headings tc \l2
"Section VII.4 Filing of Copies; References; Headings . The original or a
copy of this instrument and of each amendment hereto shall be kept at the
office of the Trust where it may be inspected by any Shareholder. A copy of
this instrument and of each amendment hereto shall be filed by the Trust with
the Secretary of The Commonwealth of Massachusetts and with the Boston City
Clerk, as well as any other governmental office where such filing may from
time to time be required, but the failure to make any such filing shall not
impair the effectiveness of this instrument or any such amendment. Anyone
dealing with the Trust may rely on a certificate by an officer of the Trust
as to whether or not any such amendments have been made, as to the identities
of the Trustees and officers, and as to any matters in connection with the
Trust hereunder; and, with the same effect as if it were the original, may
rely on a copy certified by an officer of the Trust to be a copy of this
instrument or of any such amendments. In this instrument and in any such
amendment, references to this instrument, and all expressions like herein,
hereof and hereunder shall be deemed to refer to this instrument as a whole
as the same may be amended or affected by any such amendments. The masculine
gender shall include the feminine and neuter genders. Headings are placed
herein for convenience of reference only and shall not be taken as a part
hereof or control or affect the meaning, construction or effect of this
instrument. This instrument may be executed in any number of counterparts
each of which shall be deemed an original.
Section VII.5 Applicable Law tc \l2 "Section VII.5 Applicable
Law . 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, including the
Massachusetts Business Corporation Law as the same may be amended from time
to time, to which reference is made with the intention that matters not
specifically covered herein or as to which an ambiguity may exist shall be
resolved as if the Trust were a business corporation organized in
Massachusetts, but the reference to said Business Corporation Law is not
intended to give the Trust, the Trustees, the Shareholders or any other
person any right, power, authority or responsibility available only to or in
connection with an entity organized in corporate form. The Trust shall be of
the type referred to in Section 1 of Chapter 182 of the Massachusetts General
Laws and of the type commonly called a Massachusetts business trust, and
without limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a trust.
Section 7.6 Resident Agent. Xxxxxx X. Xxxxxx, Esq., Exchange Place,
Boston, Massachusetts is hereby designated as the resident agent of the Trust
in Massachusetts.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals for themselves and their assigns, as of the day and year first above
written.
Xxxxxxx Xxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. XxXxxx
Xxxxx X. XxXxxxxx
Xxxxxxxxx X. Xxxx Xx.
DOCSC\577314.3
Words surrounding the definitions in Section 1.2 should be deleted
after regenerating (e.g. The
Trust delete The)
27
