XXXXXX VOYAGER FUND II
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
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This AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made at
Boston, Massachusetts, this 30th day of April, 2003, hereby amends and
restates in its entirety the Amended and Restated Agreement and
Declaration of Trust dated February 22, 1993, as amended through July
26, 1995. This Amended and Restated Agreement and Declaration of Trust
shall take effect as of April 30, 2003.
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WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts voluntary association with
transferable shares in accordance with the provisions hereinafter set
forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets, which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and
dispose of the same upon the following terms and conditions for the
benefit of the holders from time to time of Shares in this Trust as
hereinafter set forth.
ARTICLE I
Name and Definitions
Name
Section 1. This Trust shall be known as "XXXXXX DISCOVERY GROWTH FUND",
and the Trustees shall conduct the business of the Trust under that name
or any other name as they may from time to time determine.
Definitions
Section 2. Whenever used herein, unless otherwise required by the
context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust established
by this Agreement and Declaration of Trust, as amended from time to
time;
(b) "Trustees" refers to the Trustees of the Trust 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 or class of Shares
is authorized by the Trustees, the equal proportionate transferable
units into which each series or class of Shares shall be divided from
time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(f) The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person", "Principal Underwriter" and "Majority Shareholder
Vote" (the 67% or 50% requirement of the third sentence of Section
2(a)(42) of the 1940 Act, whichever may be applicable) shall have the
meanings given them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust as amended or restated from time to time;
(h) "Bylaws" shall mean the Bylaws of the Trust as amended from time to
time;
(i) The terms "series" or "series of Shares" refers to the one or more
separate investment portfolios of the Trust into which the assets and
liabilities of the Trust may be divided and the Shares of the Trust
representing the beneficial interest of Shareholders in such respective
portfolios; and
(j) The term "class" or "class of Shares" refers to the division of
Shares representing any series into two or more classes as provided in
Article III, Section 1 hereof.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed investment
primarily in securities, debt instruments and other instruments and
rights of a financial character.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The Shares of the Trust shall be issued in one or more
series as the Trustees may, without shareholder approval, authorize.
Each series shall be preferred over all other series in respect of the
assets allocated to that series within the meaning of the 1940 Act and
shall represent a separate investment portfolio of the Trust. The
beneficial interest in each series shall at all times be divided into
Shares, without par value, each of which shall, except as provided in
the following sentence, represent an equal proportionate interest in the
series with each other Share of the same series, none having priority or
preference over another. The Trustees may, without Shareholder
approval, divide the Shares of any series into two or more classes,
Shares of each such class having such preferences and special or
relative rights and privileges (including conversion rights, if any) as
the Trustees may determine and as shall be set forth in the Bylaws. The
number of Shares authorized shall be unlimited. The Trustees may from
time to time divide or combine the Shares of any series or class into a
greater or lesser number without thereby changing the proportionate
beneficial interest in the series or class.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on the books of
the Trust or a transfer or similar agent. No certificates certifying
the ownership of Shares shall be issued except as the Trustees may
otherwise determine from time to time. The Trustees may make such rules
as they consider appropriate for the issuance of Share certificates, the
transfer of Shares and similar matters. The record books of the Trust
as kept by the Trust or any transfer or similar agent, as the case may
be, shall be conclusive as to who are the Shareholders of each series
and class and as to the number of Shares of each series and class held
from time to time by each Shareholder.
Investment in the Trust
Section 3. The Trustees shall accept investments in the Trust from such
persons and on such terms and for such consideration, which may consist
of cash or tangible or intangible property or a combination thereof, as
they or the Bylaws from time to time authorize.
All consideration received by the Trust for the issue or sale of Shares
of each series, together with all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange
or liquidation thereof, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to the series of Shares with respect to which the
same were received by the Trust for all purposes, subject only to the
rights of creditors, and shall be so handled upon the books of account
of the Trust and are herein referred to as "assets of" such series.
No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the
Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property giving only
the rights provided in this Declaration of Trust or the Bylaws. Every
Shareholder by virtue of having become a Shareholder shall be held to
have expressly assented and agreed to the terms of this Declaration of
Trust and the Bylaws and to have become a party thereto. The death of a
Shareholder during the continuance of the Trust shall not operate to
terminate the same nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or elsewhere
against the Trust or the Trustees, but only to the rights of said
decedent under this Trust. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the
Shareholders partners. Neither the Trust nor the Trustees, nor any
officer, employee or agent of the Trust shall have any power to bind
personally any Shareholder, nor except as specifically provided herein
to call upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay.
ARTICLE IV
The Trustees
Election
Section 1. A Trustee may be elected either by the Trustees or by the
Shareholders. The number of Trustees shall be fixed from time to time
by the Trustees and, at or after the commencement of the business of the
Trust, shall be not less than three. Each Trustee elected by the
Trustees or the Shareholders shall serve until he or she retires,
resigns, is removed or dies or until the next meeting of Shareholders
called for the purpose of electing Trustees and until the election and
qualification of his or her successor. At any meeting called for the
purpose, a Trustee may be removed by vote of the holders of two-thirds
of the outstanding Shares. The initial Trustees, 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 Xxxxxx
Xxxxxx, Xxxxxxx X. Xxxxxx and Xxxx X'Xxxxx and such other persons 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, declination, resignation, retirement, removal or
incapacity of the Trustees, or any one of them, shall not operate to
annul the Trust or to revoke any existing agency created pursuant to the
terms of this Declaration of Trust.
Powers
Section 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
Bylaws not inconsistent with this Declaration of Trust providing for the
conduct of the business of the Trust and may amend and repeal them to
the extent that such Bylaws do not reserve that right to the
Shareholders; they may fill vacancies in or add to their number, and may
elect and remove such officers and appoint and terminate such agents as
they consider appropriate; they may appoint from their own number, and
terminate, any one or more committees consisting of two or more
Trustees, including an executive committee which may, when the Trustees
are not in session, exercise some or all of the power and authority of
the Trustees as the Trustees may determine; they may employ one or more
custodians of the assets of the Trust and may authorize such custodians
to employ subcustodians and to deposit all or any part of such assets in
a system or systems for the central handling of securities, retain a
transfer agent or a Shareholder servicing agent, or both, provide for
the distribution of Shares by the Trust, through one or more principal
underwriters or otherwise, set record dates for the determination of
Shareholders with respect to various matters, and in general delegate
such authority as they consider desirable to any officer of the Trust,
to any committee of the Trustees and to any agent or employee of the
Trust or to any such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the assets of the Trust;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such
power and discretion with relation to securities or property as the
Trustees shall deem proper;
(d) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any trust,
whether in bearer, unregistered or other negotiable form, or in the name
of the Trustees or of the Trust or in the name of a custodian,
subcustodian or other depositary or a nominee or nominees or otherwise;
(f) Subject to the provisions of Article III, Section 3, to allocate
assets, liabilities, income and expenses of the Trust to a particular
series of Shares or to apportion the same among two or more series,
provided that any liabilities or expenses incurred by or arising in
connection with a particular series of Shares shall be payable solely
out of the assets of that series; and to the extent necessary or
appropriate to give effect to the preferences and special or relative
rights and privileges of any classes of Shares, to allocate assets,
liabilities, income and expenses of a series to a particular class of
Shares of that series or to apportion the same among two or more classes
of Shares of that series;
(g) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security of
which is or was held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer,
and to pay calls or subscriptions with respect to any security held in
the Trust;
(h) To join other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to them such power and
authority with relation to any security (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and
to pay, such portion of the expenses and compensation of such committee,
depositary or trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not
limited to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(k) To borrow funds;
(l) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship,
or otherwise assume liability for payment thereof; and to mortgage and
pledge the Trust property or any part thereof to secure any of or all
such obligations;
(m) To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of
the business, including without limitation, insurance policies insuring
the assets of the Trust and payment of distributions and principal on
its portfolio investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, investment advisers
or managers, principal underwriters, or independent contractors of the
Trust individually against all claims and liabilities of every nature
arising by reason of holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or
omitted by any such person as Shareholder, Trustee, officer, employee,
agent, investment adviser or manager, principal underwriter, or
independent contractor, including any action taken or omitted that may
be determined to constitute negligence, whether or not the Trust would
have the power to indemnify such person against such liability; and
(n) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, 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.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees. Except as
otherwise provided herein or from time to time in the Bylaws, any action
to be taken by the Trustees may be taken by a majority of the Trustees
present at a meeting of the Trustees (a quorum being present), within or
without Massachusetts, including any meeting held by means of a
conference telephone or other communications equipment by means of which
all persons participating in the meeting can hear each other at the same
time and participation by such means shall constitute presence in person
at a meeting, or by written consents of a majority of the Trustees then
in office.
Payment of Expenses by Trust
Section 4. The Trustees are authorized to pay or to cause to be paid
out of the assets of the Trust, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in
connection with the management thereof, including, but not limited to,
the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, investment adviser or
manager, principal underwriter, auditor, counsel, custodian, transfer
agent, Shareholder servicing agent, and such other agents or independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur, provided, however, that all expenses,
fees, charges, taxes and liabilities incurred by or arising in
connection with a particular series of Shares shall be payable solely
out of the assets of that series.
Ownership of Assets of the Trust
Section 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. Subject to a favorable Majority Shareholder Vote, the
Trustees may, at any time and from time to time, contract for exclusive
or nonexclusive advisory and/or management services with any
corporation, trust, association or other organization (the "Manager"),
every such contract to comply with such requirements and restrictions as
may be set forth in the Bylaws; and any such contract may contain such
other terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine, including, without
limitation, authority to determine from time to time what investments
shall be purchased, held, sold or exchanged and what portion, if any, of
the assets of the Trust shall be held uninvested and to make changes in
the Trust's investments. The Trustees may also, at any time and from
time to time, contract with the Manager or any other corporation, trust,
association or other organization, appointing it exclusive or
nonexclusive distributor or principal underwriter for the Shares, every
such contract to comply with such requirements and restrictions as may
be set forth in the Bylaws; and any such contract may contain such other
terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
corporation, trust, association, or other organization, or of or for any
parent or affiliate of any organization, with which an advisory or
management contract, or principal underwriter's or distributor's
contract, or transfer, Shareholder servicing or other agency contract
may have been or may hereafter be made, or that any such organization,
or any parent or affiliate thereof, is a Shareholder or has an interest
in the Trust, or that
(ii) any corporation, trust, association or other organization with
which an advisory or management contract or principal underwriter's or
distributor's contract, or transfer, Shareholder servicing or other
agency contract may have been or may hereafter be made also has an
advisory or management contract, or transfer, Shareholder servicing or
other agency contract with one or more other corporations, trusts,
associations, or other organizations, or has other business or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or
executing the same or create any liability or accountability to the
Trust or its Shareholders.
ARTICLE V
Shareholders' Voting Powers and Meetings
Voting Powers
Section 1. Subject to the voting powers of one or more classes of
Shares as set forth elsewhere in this Declaration of Trust or in the
Bylaws, the Shareholders shall have power to vote only (i) for the
election of Trustees as provided in Article IV, Section 1, (ii) for the
removal of Trustees as provided in Article IV, Section 1, (iii) with
respect to any Manager as provided in Article IV, Section 6, (iv) with
respect to any termination of this Trust to the extent and as provided
in Article IX, Section 4, (v) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Article IX,
Section 7, (vi) 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 the
Shareholders, and (vii) with respect to such additional matters relating
to the Trust as may be required by this Declaration of Trust, the Bylaws
or any registration of the Trust with the Securities and Exchange
Commission (or any successor agency) or any state, or as the Trustees
may consider necessary or desirable. Each whole Share shall be entitled
to one vote as to any matter on which it is entitled to vote and each
fractional Share shall be entitled to a proportionate fractional vote.
On any matter submitted to a vote of Shareholders, all Shares of the
Trust then entitled to vote shall, except as otherwise provided in the
Bylaws, be voted in the aggregate as a single class without regard to
series or classes of shares, except (1) when required by the 1940 Act or
when the Trustees shall have determined that the matter affects one or
more series or classes of Shares materially differently, Shares shall be
voted by individual series or class; and (2) when the Trustees have
determined that the matter affects only the interests of one or more
series or classes, then only Shareholders of such series or classes
shall be entitled to vote thereon. There shall be no cumulative voting
in the election of Trustees. Shares may be voted in person or by proxy.
A proxy with respect to Xxxxxx 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 of any series or class are issued, the
Trustees may exercise all rights of Shareholders and may take any action
required by law, this Declaration of Trust or the Bylaws to be taken by
Shareholders as to such series or class.
Voting Power and Meetings
Section 2. Meetings of Shareholders of any or all series or classes may
be called by the Trustees from time to time for the purpose of taking
action upon any matter requiring the vote or authority of the
Shareholders of such series or classes as herein provided or upon any
other matter deemed by the Trustees to be necessary or desirable.
Written notice of any meeting of Shareholders shall be given or caused
to be given by the Trustees by mailing such notice at least seven days
before such meeting, postage prepaid, stating the time, place and
purpose of the meeting, to each Shareholder entitled to vote at such
meeting at the Shareholder's address as it appears on the records of the
Trust. If the Trustees shall fail to call or give notice of any meeting
of Shareholders for a period of 30 days after written application by
Shareholders holding at least 10% of the then outstanding shares of all
series and classes entitled to vote at such meeting requesting a meeting
to be called for a purpose requiring action by the Shareholders as
provided herein or in the Bylaws, then Shareholders holding at least 10%
of the then outstanding Shares of all series and classes entitled to
vote at such meeting may call and give notice of such meeting, and
thereupon the meeting shall be held in the manner provided for herein in
case of call thereof by the Trustees. Notice of a meeting need not be
given to any Shareholder if a written waiver of notice, executed by him
or her before or after the meeting, is filed with the records of the
meeting, or to any Shareholder who attends the meeting without
protesting prior thereto or at its commencement the lack of notice to
him or her.
Quorum and Required Vote
Section 3. Thirty percent of Shares entitled to vote on a particular
matter shall be a quorum for the transaction of business on that matter
at a Shareholders' meeting, except that where any provision of law or of
this Declaration of Trust or the Bylaws requires that holders of any
series or class shall vote as an individual series or class, then thirty
percent of the aggregate number of Shares of that series or class
entitled to vote shall be necessary to constitute a quorum for the
transaction of business by that series or class. Any lesser number
shall be sufficient for adjournments. Any adjourned session or sessions
may be held, within a reasonable time after the date set for the
original meeting, without the necessity of further notice. Except when
a larger vote is required by any provision of law or of this Declaration
of Trust or the Bylaws, a majority of the Shares voted shall decide any
questions and a plurality shall elect a Trustee, provided that where any
provision of law or of this Declaration of Trust or the Bylaws requires
that the holders of any series or class shall vote as an individual
series or class then a majority of the Shares of that series or class
voted on the matter (or a plurality with respect to the election of a
Trustee) shall decide that matter insofar as that series or class is
concerned.
Action by Written Consent
Section 4. Any action taken by Shareholders may be taken without a
meeting if a majority of Shareholders entitled to vote on the matter (or
such larger proportion thereof as shall be required by any express
provision of this Declaration of Trust or the Bylaws) consent to the
action in writing and such written consents are filed with the records
of the meetings of Shareholders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
Additional Provisions
Section 5. The Bylaws may include further provisions, not inconsistent
with this Declaration of Trust, regarding Shareholders' voting powers,
the conduct of meetings and related matters.
ARTICLE VI
Distributions, Redemptions and Repurchases
Distributions
Section 1. The Trustees may each year, or more frequently if they so
determine, distribute to the Shareholders of each series out of the
assets of such series such amounts as the Trustees may determine. Any
such distribution to the Shareholders of a particular series shall be
made to said Shareholders pro rata in proportion to the number of Shares
of such series held by each of them, except to the extent otherwise
required or permitted by the preferences and special or relative rights
and privileges of any classes of Shares of that Series, and any
distribution to the Shareholders of a particular class of Shares shall
be made to such Shareholders pro rata in proportion to the number of
Shares of such class held by each of them. Such distributions shall be
made in cash, Shares or other property, or a combination thereof, as
determined by the Trustees. Any such distribution paid in Shares will
be paid at the net asset value thereof as determined in accordance with
the Bylaws.
Redemptions and Repurchases
Section 2. The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of any certificate for
the Shares to be purchased, a proper instrument of transfer and a
request directed to the Trust or a person designated by the Trust that
the Trust purchase such Shares, or in accordance with such other
procedures for redemption as the Trustees may from time to time
authorize; and the Trust will pay therefor the net asset value thereof,
as next determined in accordance with the Bylaws, less any redemption
charge fixed by the Trustees. Payment for said Shares shall be made by
the Trust to the Shareholder within seven days after the date on which
the request is made. The obligation set forth in this Section 2 is
subject to the provision that in the event that any time the New York
Stock Exchange is closed for other than customary weekends or holidays,
or, if permitted by rules of the Securities and Exchange Commission,
during periods when trading on the Exchange is restricted or during any
emergency which makes it impractical for the Trust to dispose of its
investments or to determine fairly the value of its net assets, or
during any other period permitted by order of the Securities and
Exchange Commission for the protection of investors, such obligation may
be suspended or postponed by the Trustees. The Trust may also purchase
or repurchase Shares at a price not exceeding the net asset value of
such Shares in effect when the purchase or repurchase or any contract to
purchase or repurchase is made.
Redemption at the Option of the Trust
Section 3. The Trust shall have the right at its option and at any time
to redeem Shares of any Shareholder at the net asset value thereof as
determined in accordance with the Bylaws: (i) if at such time such
Shareholder owns fewer Shares than, or Shares having an aggregate net
asset value of less than, an amount determined from time to time by the
Trustees; 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 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.
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, manager
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 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 each of its Trustees and officers
(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 Covered Person may be or may have been
threatened, while in office or thereafter, by reason of being or having
been such a Covered Person except with respect to any matter as to which
such Covered Person shall have been finally adjudicated in any such
action, suit or other proceeding (a) not to have acted in good faith in
the reasonable belief that such Covered Person's action was in the best
interest of the Trust or (b) to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of such Covered 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),
shall be paid from time to time by the Trust in advance of the final
disposition of any such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Covered Person to repay amounts so
paid to the Trust if it is ultimately determined that indemnification of
such expenses is not authorized under this Article, provided, however,
that either (a) such Covered Person shall have provided appropriate
security for such undertaking, (b) the Trust shall be insured against
losses arising from any such advance payments or (c) either a majority
of the disinterested Trustees acting on the matter (provided that a
majority of the disinterested Trustees then in office act on the
matter), or independent legal counsel in a written opinion, shall have
determined, based upon a review of readily available facts (as opposed
to a full trial type inquiry) that there is reason to believe that such
Covered Person will be found entitled to indemnification under this
Article.
Compromise Payment
Section 2. As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an
adjudication by a court, or by any other body before which the
proceeding was brought, that such Covered Person either (a) did not act
in good faith in the reasonable belief that his or her action was in the
best interests of the Trust or (b) 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 his or her office, indemnification shall be provided if (a) approved
as in the best interests of the Trust, after notice that it involves
such indemnification, by at least a majority of the disinterested
Trustees acting on the matter (provided that a majority of the
disinterested Trustees then in office act on the matter) upon a
determination, based upon a review of readily available facts (as
opposed to a full trial type inquiry) that such Covered Person acted in
good faith in the reasonable belief that his or her action was in the
best interests of the Trust and 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 his or her office, or (b) there has been obtained an opinion in
writing of independent legal counsel, based upon a review of readily
available facts (as opposed to a full trial type inquiry) to the effect
that such Covered Person appears to have acted in good faith in the
reasonable belief that his or her action was in the best interests of
the Trust and that such indemnification would not protect such Covered
Person against any liability to the Trust 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. Any approval pursuant to this Section shall not
prevent the recovery from any Covered Person of any amount paid to such
Covered Person in accordance with this Section as indemnification if
such Covered Person is subsequently adjudicated by a court of competent
jurisdiction not to have acted in good faith in the reasonable belief
that such Covered Person's action was in the best interests of the Trust
or to have been liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Covered 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 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 Trustee" is a Trustee who is not an "interested person"
of the Trust as defined in Section 2(a)(19) of the 1940 Act (or who has
been exempted from being an "interested person" by any rule, regulation
or order of the Securities and Exchange Commission) and against whom
none of such actions, suits or other proceedings or another action, suit
or other proceeding on the same or similar grounds is then or has been
pending. Nothing contained in this Article shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees or
officers, and other persons may be entitled by contract or otherwise
under law, nor the power of the Trust to purchase and maintain liability
insurance on behalf of any such person.
Shareholders
Section 4. In case any Shareholder or former Shareholder shall be held
to be personally liable solely by reason of his or her being or having
been a Shareholder and not because of his or her acts or omissions or
for some other reason, the Shareholder or former Shareholder (or his or
her heirs, executors, administrators or other legal representative or in
the case of a corporation or other entity, its corporate or other
general successor) shall be entitled to be held harmless from and
indemnified against all loss and expense arising from such liability,
but only out of the assets of the particular series of Shares of which
he or she is or was a Shareholder.
ARTICLE IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable; 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 officer or officers 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
Trustee or Trustees or as officer or officers 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 thereof shall not
operate to bind any Trustee or Trustees or officer or officers or
Shareholder or Shareholders 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 be
liable for his or her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of the office of Trustee, and for nothing else. The Trustees 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. The Trustees shall not be required to give any bond
as such, nor any surety if a bond is required.
Liability of Third Persons Dealing with Trustee
Section 3. No person dealing with the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be
made by the Trustees or to see to the application of any payments made
or property transferred to the Trust or upon its order.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust 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, of the Trust or of the particular series 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 property, 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 and 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 Boston City Clerk, as
well as any other governmental office where such filing may from time to
time be required. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
amendments have been made and as to any matters in connection with the
Trust hereunder, and, with the same effect as if it were the original,
may rely on a copy certified by an officer of the Trust to be a copy of
this instrument or of any such amendments. In this instrument and in
any such amendment, references to this instrument and all expressions
like "herein", "hereof" and "hereunder" shall be deemed to refer to this
instrument as amended or affected by any such amendments. Headings are
placed herein for convenience of reference only and shall not be taken
as a part hereof or control or affect the meaning, construction or
effect of this instrument. This instrument may be executed in any
number of counterparts each of which shall be deemed an original.
Applicable Law
Section 6. This Declaration of Trust is made in The Commonwealth of
Massachusetts, and it is created under and is to be governed by and
construed and administered according to the laws of said Commonwealth.
The Trust shall be of the type commonly called a Massachusetts business
trust and, without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust.
Amendments
Section 7. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when
authorized to do so by vote of Shareholders holding a majority of the
Shares entitled to vote, except that an amendment which in the
determination of the Trustees shall affect the holders of one or more
series or classes of Shares but not the holders of all outstanding
series and classes shall be authorized by vote of the Shareholders
holding a majority of the Shares entitled to vote of each series and
class affected and no vote of Shareholders of a series or class not
affected shall be required. Amendments having the purpose of changing
the name of the Trust or of supplying any omission, curing any ambiguity
or curing, correcting or supplementing any defective or inconsistent
provision contained herein shall not require authorization by
Shareholders vote.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his hand
and seal in the City of Boston, Massachusetts for himself and his
assigns, as of the day and year first above written.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxx /s/ Xxxxxx X. Xxxxxxx
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Xxxx X. Xxxx Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx /s/ Xxxxxxxxx X. Xxxxxx
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Xxxx X. Xxxxxx Xxxxxxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx, III
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Xxxxxxxx X. Xxxxxx Xxxx X. Xxxxxx, III
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxx, III
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Xxxxxx X. Xxxxxxxxx Xxxxxx Xxxxxx, III
/s/ X.X.X. Xxxxx /s/ X. Xxxxxx Xxxxxxxx
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X.X.X. Xxxxx X. Xxxxxx Xxxxxxxx
/s/ X. Xxxxxxxx Xxxxxxxxx
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X. Xxxxxxxx Xxxxxxxxx
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, April 16, 2003
Then personally appeared each of the above named Trustees and
acknowledged the foregoing instrument to be their free act and deed,
before me,
/s/ X. Xxxxx-Xxxxxx
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X. Xxxxx-Xxxxxx
Notary Public
My Commission Expires: 10/7/2005
The address of the Trust is Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
