Exhibit 24(b)(1)
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXXXXXX LIMITED-TERM GOVERNMENT FUND
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made
this 23rd day of June, 1995, by the Trustees whose signatures are set forth
below (together with all other persons from time to time duly elected, qualified
and serving as Trustees in accordance with the provision of Article IV hereof,
the "Trustees"), and by the holders of shares of beneficial interest heretofore
issued or to be issued hereunder as hereinafter provided.
WITNESSETH
WHEREAS, the Trustees previously formed a trust for the
purposes of carrying on the business of a management investment company under an
Agreement and Declaration of Trust dated January 16, 1986 as amended February
14, 1986, June 26, 1992, April 29, 1993, May 1, 1994 and January 16, 1995; and
in furtherance of such purposes, the Trustees have acquired and may hereafter
acquire assets and properties, to hold and manage as trustees of a Massachusetts
voluntary association with transferable shares in accordance with the provisions
hereinafter set forth; and
WHEREAS, the Trustees of the Trust have changed the quorum
requirements set forth in Section 3 of Article V; and
WHEREAS, the Trustees desire to make permitted changes to said
Declaration of Trust pursuant to Section 4 of Article IX.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities and other assets and properties, which they may from
time to time acquire in any manner as Trustees hereunder IN TRUST pursuant to
this Amended and Restated Agreement and Declaration of Trust to manage and
dispose of the same upon the following terms and conditions for the pro rata
benefit of the holders from time to time of Shares in the Trust as hereinafter
set forth.
ARTICLE I
Name and Definitions
Name and Registered Agent
Section 1. This Trust shall be known as "Xxxxxxxxxxx
Limited-Term Government Fund" and the Trustees shall conduct the business of the
Trust under that name or any other name as they may
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from time to time determine. The address of the Trust is 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000. The registered agent for the
Trust in Massachusetts shall be Massachusetts Mutual
Life Insurance Company, 0000 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxxxx Xxxx, Esq., or such other person as the Trustees may from
time to time designate.
Definitions
Section 2. Whenever used herein, unless otherwise required by the context or
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specifically provided:
(a) The "Trust" refers to the Massachusetts voluntary
association established by this Agreement and Declaration of Trust, as it may be
amended from time to time, pursuant to Massachusetts General Laws, Chapter 182;
(b) "Trustees" refers to the Trustees of the Trust named
herein or elected in accordance with Article IV and then in office;
(c) "Shares" mean the transferable units of interest into
which the beneficial interest in the Trust or any Series or Class of the Trust
shall be divided from time to time, and includes fractions of Shares as well as
whole Shares;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of
1940 (and any successor statute) 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 "vote of a majority of the
outstanding voting securities" and other terms which are defined in the 1940 Act
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) "By-Laws" shall mean the By-Laws of the Trust as amended
from time to time;
(i) "Net asset value" shall have the meaning set forth in
Section 5 of Article VI hereof;
(j) "Class" means a class of a Series of Shares established
and designated in accordance with the provisions of this Declaration of Trust;
and
(k) "Series" means the Series of Shares established and
designated in accordance with the provisions of this Declaration of Trust.
ARTICLE II
Nature and Purpose
The Trust is a voluntary association (commonly known as a
business trust) of the type referred to in Chapter 182 of the General Laws of
the Commonwealth of Massachusetts. The Trust is not intended to be, shall not be
deemed to be, and shall not be treated as, a general or a limited partnership,
joint venture, corporation or joint stock company, nor shall the Trustees or
Shareholders or any of them for any purpose be deemed to be, or be treated in
any way whatsoever as though they were, liable or responsible hereunder as
partners or joint venturers. The purpose of the Trust is to engage in, operate
and carry on the business of an open-end management investment company and to do
any and all acts or other things as are necessary, convenient, appropriate,
incidental or customary
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in connection therewith.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The beneficial interest in the Trust shall be
divided into Shares, all without par value, but the Trustees shall have the
authority from time to time, without obtaining Shareholder approval, to create
one or more Series of Shares in addition to the Series specifically established
and designated in Section 3 of this Article III, and to divide the shares of any
Series into two or more Classes pursuant to Section 2 of this Article III, all
as they deem necessary or desirable, to establish and designate such Series and
Classes, and to fix and determine the relative rights and preferences as between
the different Series or Classes of Shares as to right of redemption and the
price, terms and manner of redemption, liabilities and expenses to be borne by
any Series or Class, special and relative rights as to dividends and other
distributions and on liquidation, sinking or purchase fund provisions,
conversion on liquidation, conversion rights, and conditions under which the
several Series or Classes shall have individual voting rights or no voting
rights. Except as aforesaid, all Shares of the different Series shall be
identical.
(a) The number of authorized Shares and the number of Shares
of each Series and each Class of a Series that may be issued is unlimited, and
the Trustees may issue Shares of any Series or Class of any Series 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. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any Series into one or more Series or Classes of Series that may be established
and designated from time to time; and 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 interests in the Series or
Class. The Trustees may hold as treasury Shares (of the same or some other
Series), reissue for such consideration and on such terms as they may determine,
or cancel, at their discretion from time to time, any Shares of any Series
reacquired by the Trust.
(b) The establishment and designation of any Series or any
Class of any Series in addition to that established and designated in Section 3
of this Article III shall be effective upon the execution by a majority of the
Trustees of an instrument setting forth such establishment and designation and
the relative rights and preferences of such Series or such Class of such Series
or as otherwise provided in such instrument. At any time that there are no
Shares outstanding of any particular Series previously established and
designated, and as provided in Article IX, Section 1, the Trustees may by an
instrument executed by a majority of their number abolish that Series and the
establishment and designation thereof. Each instrument referred to in this
paragraph shall be an amendment to this Declaration of Trust, and the Trustees
may make any such amendment without shareholder approval.
Section 2. The Trustees shall have the authority from time to
time to divide the Shares of any Series into two or more Classes as they deem
necessary or desirable, and to establish
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and designate such Classes. In such event, each Class of a Series shall
represent interests in the designated Series of the Trust and have such voting,
dividend, liquidation and other rights as may be established and designated by
the Trustees. Expenses and liabilities related directly or indirectly to the
Shares of a Class of a Series may be borne solely by such Class (as shall be
determined by the Trustees) and, as provided in Article V, a Class of a Series
may have exclusive voting rights with respect to matters relating solely to such
Class. The bearing of expenses and liabilities solely by a Class of Shares of a
Series shall be appropriately reflected (in the manner determined by the
Trustees) in the net asset value, dividend and liquidation rights of the Shares
of such Class of a Series. The division of the Shares of a Series into Classes
and the terms and conditions pursuant to which the Shares of the Classes of a
Series will be issued must be made in compliance with the 1940 Act. No division
of Shares of a Series into Classes shall result in the creation of a Class of
Shares having a preference as to dividends or distributions or a preference in
the event of any liquidation, termination or winding up of the Trust, to the
extent such a preference is prohibited by Section 18 of the 1940 Act as to the
Trust.
The relative rights and preferences of Shares of different
Classes shall be the same in all respects except that, unless and until the
Board of Trustees shall determine otherwise: (i) when a vote of Shareholders is
required under this Declaration of Trust or when a meeting of Shareholders is
called by the Board of Trustees, the Shares of a Class shall vote exclusively on
matters that affect that Class only, (ii) the expenses related to a Class shall
be borne solely by such Class (as determined and allocated to such Class by the
Trustees from time to time in a manner consistent with Sections 2 and 3 of this
Article III); and (iii) pursuant to Section 10 of Article III, the Shares of
each Class shall have such other rights and preferences as are set forth from
time to time in the then-effective Prospectus and/or Statement of Additional
Information relating to the Shares. Dividends and distributions on one class may
differ from the dividends and distributions on another Class, and the net asset
value of the Shares of one Class may differ from the net asset value of the
Shares of another Class.
Section 3. Without limiting the authority of the Trustees set
forth in Section 1 of this Article III to establish and designate any further
Series, the Trustees hereby divide the single Series of shares of the Trust
having the same name as the Trust into three Classes designated Class A, Class B
and Class C. The Shares of that Series and any Shares of any further Series 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
Series or Classes at the time of establishing and designating the same) have the
following relative rights and preferences:
(a) Assets Belonging to Series. All consideration received by
the Trust for the issue or sale of Shares of a particular Series, 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
irrevocably belong to that Series for all purposes, subject only to the rights
of creditors, 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 Series as provided in the following sentence, are herein
referred to as "assets belonging to" that Series. In the event that there are
any assets, income, earnings, profits and proceeds thereof, funds or payments
which are not readily identifiable as
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belonging to any particular Series (collectively "General Items"), the Trustees
shall allocate such General Items to and among any one or more of the Series
established and designated from time to time in such manner and on such basis as
they, in their sole discretion, deem fair and equitable; and any General Items
so allocated to a particular Series shall belong to that Series. Each such
allocation by the Trustees shall be conclusive and binding upon the shareholders
of all Series for all purposes.
(b) (1) Liabilities Belonging to the Series. The liabilities,
expenses, costs, charges and reserves attributable to each Series shall be
charged and allocated to the assets belonging to each particular Series. Any
general liabilities, expenses, costs, charges and reserves of the Trust which
are not identifiable as belong to any particular Series shall be allocated and
charged by the Trustees to and among any one or more of the Series established
and designated from time to time in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. The liabilities,
expenses, costs, charges and reserves allocated and so charged to each Series
are herein referred to as "liabilities belonging to" that Series. Each
allocation of liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon the shareholders of all Series for all
purposes.
(2) Liabilities Belonging to a Class. If a Series
is divided into more than
one Class, the liabilities, expenses, costs, charges and reserves attributable
to a Class shall be charged and allocated to the Class to which such
liabilities, expenses, costs, charges or reserves are attributable. Any general
liabilities, expenses, costs, charges or reserves belonging to the Series which
are not identifiable as belonging to any particular Class shall be allocated and
charged by the Trustees to and among any one or more of the Classes 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 each Class are
herein referred to as "liabilities belonging to" that Class. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the holders of all Classes for all purposes.
(c) Dividends. Dividends and distributions on Shares of a
particular Series or Class may be paid to the holders of Shares of that Series
or Class, 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, from such of the income,
capital gains accrued or realized, and capital and surplus, from the assets
belonging to that Series, as the Trustees may determine, after providing for
actual and accrued liabilities belonging to such Series or Class. All dividends
and distributions on Shares of a particular Series or Class shall be distributed
pro rata to the holders of such Series or Class in proportion to the number of
Shares of such Series 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 the Shareholder's 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 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 Section 5 of
Article VI.
(d) Liquidation. In the event of the liquidation or
dissolution of the Trust, the
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Shareholders of all Classes of each Series that have been established and
designated shall be entitled to receive, as a Series or Class, when and as
declared by the Trustees the excess of the assets belonging to that Series over
the liabilities belonging to that Series or Class. The assets so distributable
to the Shareholders of any particular Class and Series shall be distributed
among such Shareholders in proportion to the number of Shares of such Class of
that Series held by them and recorded on the books of the Trust.
(e) Transfer. All Shares of each particular Series shall be
transferable, but transfers of Shares of a particular Class or Series will be
recorded on the Share transfer records of the Trust applicable to such Class of
that Series only at such times as Shareholders shall have the right to require
the Trust to redeem Shares of such Series or Class of that Series and at such
other times as may be permitted by the Trustees.
(f) Equality. Each Share of a Series shall represent an equal
proportionate interest in the assets belonging to that Series (subject to the
liabilities belonging to such Class of that Series), and each Share of any
particular Series shall be equal to each other Share of that Series; but the
provisions of this sentence shall not restrict any distinctions permissible
under this Article III that may exist with respect to Shares of the different
Classes of a Series. The Trustees may from time to time divide or combine the
Shares of any particular Class or Series into a greater or lesser number of
Shares of that Class or Series without thereby changing the proportionate
beneficial interest in the assets belonging to the Class or Series or in any way
affecting the rights of Shares of any other Class or Series.
(g) Fractions. Any fractional Share of any Class and Series,
if any such fractional Share is outstanding, shall carry proportionately all the
rights and obligations of a whole Share of that Class and Series, including
those rights and obligations with respect to voting, receipt of dividends and
distributions, redemption of Shares, and liquidation of the Trust.
(h) Conversion Rights. Subject to compliance with the
requirements of the 1940 Act, the Trustees shall have the authority to provide
that (i) holders of Shares of any Series shall have the right to exchange said
Shares into Shares of one or more other Series of Shares, (ii) holders of Shares
of any Class shall have the right to exchange said Shares into Shares of one or
more other Classes of the same or a different Series, and/or (iii) the Trust
shall have the right to carry out the aforesaid exchanges, in each case in
accordance with such requirement and procedures as may be established by the
Trustees. Except as otherwise determined by the Trustees in their sole
discretion, Shareholders shall have no exchange or conversion right with respect
to their Shares.
(i) Preemptive Rights. Shareholders shall have no preemptive
or other rights to receive, purchase or subscribe for any additional Shares or
other securities issued by the Trust. The Shareholders shall have no appraisal
rights with respect to their Shares.
Ownership of Shares
Section 4. The ownership and transfer of Shares shall be
recorded on the books of the Trust or its transfer agent or similar agent, which
books shall be maintained separately for the Shares of each Class and Series. 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
use of facsimile signatures, the transfer
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of Shares and similar matters. The record books of the Trust as kept by the
Trust or any transfer or similar agent of the Trust, as the case may be, shall
be conclusive as to who are the Shareholders of each Series or Class and as to
the number of Shares of each Series and Class held from time to time by each
Shareholder.
Investments in the Trust
Section 5. The Trustees may issues Shares of the Trust to such
persons and on such terms and, subject to any requirements of law, for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as they may from to time to time authorize.
Right to Refuse Orders
Section 6. The Trust by action of its Trustees shall have the
right to refuse to accept any subscription for its Shares at any time without
any cause or reason therefor whatsoever. Without limiting the foregoing, the
Trust shall have the right not to accept subscriptions under circumstances or in
amounts as the Trustees in their sole discretion consider to be disadvantageous
to existing Shareholders, and the Trustees may from time to time set minimum
and/or maximum amounts which may be invested in Shares by a subscriber. The
Trustees may authorize any distributor, principal underwriter, custodian,
transfer agent or other person to accept orders for the purchase or sale of
Shares that conform to such authorized terms and to reject any purchase or sale
orders for Shares whether or not conforming to such authorized terms.
Time for Determining Sales Price
Section 7. The time or times as of which the net asset value
shall be determined for the purpose of determining the sales price for Shares
issued pursuant to this Article III shall be at such times as the Trustees may
establish from time to time in accordance with applicable provisions of the 1940
Act.
Order in Proper Form
Section 8. The criteria for determining what constitutes an
order in proper form and the time of receipt of such an order by the Trust shall
be prescribed by resolution of the Trustees and such criteria may be established
in the Trust's then current prospectus or established by the Trust's distributor
or transfer agent, subject to approval of the Trustees.
When Shares Become Outstanding
Section 9. Shares subscribed for and for which an order in
proper form has been received shall be deemed to be outstanding as of the time
of acceptance of the order therefor and the determination of the net price
thereof, which price shall be then deemed to be an asset of the Trust.
Merger or Consolidation
Section 10. In connection with the acquisition of all or
substantially all the assets or stock of another investment company, investment
trust, or of a company classified as a personal holding company under Federal
Income Tax laws, the Trustees may issue or cause to be issued Shares
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of a Series or Class and accept in payment therefor, in lieu of cash, such
assets at their market value, or such stock at the market value of the assets
held by such investment company or investment trust, either with or without
adjustment for contingent costs or liabilities.
Status of Shares and Limitation of Personal Liability
Section 11. 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 of the Declaration of Trust 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 succeed 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.
Shareholder Inspection Rights
Section 12. Any Shareholder or his or her agent may inspect
and copy during normal business hours any of the following documents of the
Trust: By-Laws, minutes of the proceedings of the Shareholders and annual
financial statements of the Trust, including a balance sheet and financial
statements of operations. The foregoing rights of inspection of Shareholders of
the Trust are the exclusive and sole rights of the Shareholders with respect
thereto and no Shareholder of the Trust shall have, as a Shareholder, the right
to inspect or copy any of the books, records or other documents of the Trust
except as specifically provided in this Section 12 of this Article III or except
as otherwise determined by the Trustees.
ARTICLE IV
The Trustees
Number, Designation, Election, Term, Etc.
Section 1.
(a) Number. The Trustees who have executed this Amended and
Restated Declaration of Trust may increase or decrease the number of Trustees to
a number other than the number theretofore determined which number shall not be
less than three nor more than fifteen. No decrease in the number of Trustees
shall have the effect of removing any Trustee from office prior to the
expiration of his or her term, but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to subsection (d) of this
Section 1.
(b) Term. Each Trustee, whether now incumbent or hereafter
becoming a Trustees, shall serve as a Trustee until the next meeting of
Shareholders, if any, called for the purpose
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of considering the election or re-election of such Trustee or of a successor to
such Trustee, and until the election and qualification of his successor, if any,
elected at such meeting, or until such Trustee sooner dies, resigns, retires or
is removed. Upon the election and qualification of a new Trustee, the Trust
estate shall vest in the new Trustee (together with the continuing or other new
Trustees) without any further act or conveyance.
(c) Resignation and Retirement. Any Trustee may resign his or
her trust or retire as a Trustee, by written instrument signed by him or her and
delivered to the other Trustees or to any officer of the Trust, and such
resignation or retirement shall take effect upon such delivery or upon such
later date as is specified in such instrument.
(d) Removal. Any Trustee may be removed for cause at any time
by written instrument, signed by at least a majority of the number of Trustees
prior to such removal, specifying the date upon which such removal shall become
effective. Any Trustee may be removed with or without cause (i) by the vote of
the Shareholders entitled to be cast on the matter voting together without
regard to Series or Class at any meeting called for such purpose, or (ii) by a
written consent filed with the custodian of the Trust's portfolio securities and
executed by the Shareholders entitled to vote more than fifty percent (50%) of
the votes entitled to be cast on the matter voting together without regard to
Series or Class.
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 Shares constituting at least one percent of the outstanding Shares of
the Trust, 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 meeting to consider removal of a Trustee and accompanied by a form
of communication and request that they wish to transmit, the Trustees shall
within five business days after receipt of such application inform such
applicants as to the approximate cost of mailing to the Shareholders of record
the proposed communication and form of request. Upon the written request of such
applicants, accompanied by a tender of the material to be mailed and of the
reasonable expenses of mailing, the Trustees shall, within reasonable
promptness, mail such material to all Shareholders of record at their addresses
as recorded on the books of the Trust. Notwithstanding the foregoing, the
Trustees may refuse to mail such material on the basis and in accordance with
the procedures set forth in the last two paragraphs of Section 16(c) of the 1940
Act.
(e) 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 three remaining Trustees, need not unless required by the
0000 Xxx) be filled either by a majority of the remaining Trustees, even if less
than a quorum, through the appointment in writing of such other person as such
remaining Trustees in their discretion shall determine or, whenever deemed
appropriate by the remaining Trustees, by the election by the Shareholders, at a
meeting called for such purpose, of a person to fill such vacancy, and such
appointment or election 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 or election 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 or elected shall have accepted such appointment or election
and shall have agreed
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in writing to be bound by this Declaration of Trust and the appointment or
election is effective, the Trust estate shall vest in the new Trustee, together
with the continuing Trustees, without any further act or conveyance.
(f) Mandatory Election by Shareholders. Notwithstanding the
foregoing provisions of this Section 1, the Trustees shall call a meeting of the
Shareholders for the election of one or more Trustees at such time or times as
may be required in order that the provisions of the 1940 Act may be complied
with, and the authority hereinabove provided for the Trustees to appoint any
successor Trustee or Trustees shall be restricted if such appointment would
result in failure of the Trust to comply with any provision of the 1940 Act.
(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 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. Except 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.
Powers
Section 2. The Trustees, subject only to the specific
limitations contained in this Declaration of Trust or otherwise imposed by the
1940 Act or other applicable law, shall have, without further or other
authorization and free from any power or control of the Shareholders, full,
absolute and exclusive power, control and authority over the Trust assets and
the business and affairs of the Trust to the same extent as if the Trustees were
the sole and absolute owners thereof in their own right and to do all such acts
and things as in their sole judgment and discretion are necessary and incidental
to, or desirable for, the carrying out of any of the purposes of the Trust or
conducting the business of the Trust. Any determination made in good faith by
the Trustees of the purposes of the Trust or the existence of any power or
authority hereunder shall be conclusive. In construing the provisions of this
Declaration of Trust, there shall be a presumption in favor of the grant of
power and authority to the Trustees. Without limiting the foregoing, the
Trustees may adopt By-Laws not inconsistent with this Declaration of Trust
containing provisions relating to the business of the Trust, the conduct of its
affairs, its rights or powers and the rights or powers of its Shareholders,
Trustees, officers, employees and other agents and may amend and repeal them to
the extent that such By-Laws do not reserve that right to the Shareholders; fill
vacancies in their number, including vacancies resulting from increases in their
number, unless a vote of the Trust's Shareholders is required to fill such
vacancies pursuant to the 1940 Act; elect and remove such officers and appoint
and terminate such agents as they consider appropriate; 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 powers and authority of the Trustees as
the Trustees may determine; appoint an advisory board, the members of which
shall not be Trustees and need not be Shareholders; employ one or more
investment advisers or managers as provided in Section 6 of this Article IV;
employ one or more custodians of the assets of the Trust and authorize such
custodians to employ subcustodians and to deposit all or any part of such assets
in a system or systems for the central handling of securities; retain a transfer
agent or a Shareholder services agent, or both, provide
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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.
In furtherance of and not in limitation of the foregoing, the
Trustees shall have power and authority:
(a) To invest and reinvest in, to buy or otherwise acquire, to
hold, for investment or otherwise, to sell or otherwise dispose of, to lend or
to pledge, to trade in or deal in securities or interests of all kinds, however
evidenced, or obligations of all kinds, however evidenced, or rights, warrants,
or contracts to acquire such securities, interests, or obligations, of any
private or public company, corporation, association, general or limited
partnership, trust or other enterprise or organization, foreign or domestic, or
issued or guaranteed by any national or state government, foreign or domestic,
or their agencies, instrumentalities or subdivisions (including but not limited
to, bonds, debentures, bills, time notes and all other evidences of
indebtedness); negotiable or non-negotiable instruments; any and all futures
contracts; government securities and money market instruments (including but not
limited to, bank certificates of deposit, finance paper, commercial paper,
bankers acceptances, and all kinds of repurchase agreements);
(b) To invest and reinvest in, to buy or otherwise acquire, to
hold, for investment or otherwise, to sell or otherwise dispose of foreign
currencies, and funds and exchanges, and make deposits in banks, savings banks,
trust companies, and savings and loan associations, foreign or domestic;
(c) To acquire (by purchase, lease or otherwise) and to hold,
use, maintain, develop, and dispose of (by sale or otherwise) any property, real
or personal, and any interest therein;
(d) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(e) 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;
(f) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities;
(g) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable form, or in the
name of the Trustees or of the Trust or in the name of a custodian, subcustodian
or other depository or a nominee or nominees or otherwise;
(h) To consent or to participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security or property 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;
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(i) To join with 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;
(j) 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;
(k) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(l) To borrow funds;
(m) 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;
(n) 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 agents
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
(o) 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 future law or custom in regard to investments by trustees of common law
trusts. Except as otherwise provided herein or from time to time in the By-Laws,
any action to be taken by the Trustees may be taken by a majority of the
Trustees present at a meeting of Trustees (if a quorum be 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 communicate with each other simultaneously 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
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Section 3. Consistent with the provisions of Section 3 of
Article III, the Trustees are authorized to pay or to cause to be paid out of
the principal or income of the Trust or of its respective Series and Classes, or
partly out of principal and partly out of income, as they deem fair, all
expenses, fees, charges, taxes and liabilities incurred or arising in connection
with the Trust, or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, investment adviser or manager,
principal underwriter, auditor, counsel, custodian, transfer agent, shareholder
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.
Section 4. The Trustees shall have the power, as frequently as
they may determine, to cause each Shareholder to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer or shareholder service
or similar agent, an amount fixed from time to time by the Trustees, by setting
off such charges due from such Shareholder from declared but unpaid dividends
owed such Shareholder and/or by reducing the number of Shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such Shareholder.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of each Series of the
Trust 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 vote of a majority of the
outstanding voting securities of a Series of the Trust, the Trustees may on
behalf of such Series, at any time and from time to time, contract for exclusive
or nonexclusive advisory and/or management services with a corporation, trust,
association or other organization, every such contract to comply with such
requirements and restrictions as may be set forth in the By-Laws; and any such
contract may contain such other terms interpretive of or in addition to said
requirements and restrictions as the Trustees may determine, 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
such Series shall be held uninvested and to make changes in such Series'
investments. The Trustees may also, at any time and from time to time, contract
with a 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 By-Laws; and any such contract may contain such other terms
interpretive of or in addition to said requirements and restrictions as the
Trustees may determine.
The fact that:
(a) any of the Shareholders, Trustees or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee, manager,
advisor, 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 or
principal underwriter's or distributor's contract, or transfer, Shareholder
services or other agency contract may have been or may hereafter be made, or
that any such organization, or any parent or affiliate thereof, is a Shareholder
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or has interest in the Trust, or that
(b) any corporation, trust, association or other organization
with which an advisory or management or principal underwriter's or distributor's
contract, or transfer, Shareholder services or other agency contract may have
been or may hereafter be made also has an advisory or management contract, or
principal underwriter's or distributor's contract, or transfer, Shareholder
services or other agency contract with one or more other corporations, trusts,
associations, or other organizations, or has other businesses 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. The Shareholders shall have power to vote only: (a)
for the election or removal of Trustees as provided in Article IV, Section 1;
(b) with respect to any investment advisor or manager as provided in Article IV,
Section 6; (c) with respect to any termination or reorganization of the Trust or
any series thereof to the extent and as provided in Article IX, Section 1; (d)
with respect to any amendment of this Declaration of Trust to the extent and as
provided in Article IX, Section 4; (e) 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 (f) with
respect to such additional matters relating to the Trust as may be required by
law, the 1940 Act, this Declaration of Trust, the By-Laws or any then-effective
registration of the Trust filed 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. Notwithstanding any other provision
of the Declaration of Trust, on any matter submitted to a vote of Shareholders
all Shares of the Trust then entitled to vote shall be voted by individual
Series and not in the aggregate, except (a) when required by the 1940 Act,
Shares shall be voted in the aggregate and not by individual Series; and (b)
when the Trustees have determined that the matter affects only the interests of
one or more Series or Class of Series, then only Shareholders of such Series or
Class shall be entitled to vote thereon. There shall be no cumulative voting in
the election of Trustees. Shares may be voted in person or by proxy.
A proxy with respect to Shares held in the name of two or more
persons shall be valid if executed by any one of them unless at or prior to the
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.
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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.
Shareholder Meetings
Section 2. Meetings of Shareholders (including meetings
involving only one or more but less than all Series or Classes) may be called
and held 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. Such
meetings shall be held at the principal office of the Trust as set forth in the
By-Laws of the Trust, or at any such other place within the United States as may
be designated in the call thereof, which call shall be made by the Trustees or
the Chairman of the Trust. Meetings of Shareholders may be called by the
Trustees or such other person or persons as may be specified in the By-Laws and
shall be called by the Trustees or such other person or persons as may be
specified in the By-Laws upon written application by Shareholders holding at
least 25% (or ten percent (10%) if the purpose of the meeting is to determine if
a Trustee is to be removed from office) of the Shares then outstanding
requesting a meeting be called for a purpose requiring action by the
Shareholders as provided herein or in the By-Laws which purpose shall be
specified in any such written application.
Shareholders shall be entitled to at least seven days' written
notice of any meeting of the Shareholders.
Quorum and Required Vote
Section 3. The presence at a meeting of Shareholders in person
or by proxy of Shareholders entitled to vote at least thirty percent (30%) of
all votes entitled to be cast at the meeting of each Series or Class entitled to
vote as a Series or Class shall be a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or of this
Declaration of Trust permits or requires that the holders of Shares shall vote
in the aggregate and not as a Series or Class, then the presence in person or by
proxy of Shareholders entitled to vote at least thirty percent (30%) of all
votes entitled to be cast at the meeting (without regard to Series or Class)
shall constitute a quorum. Any lesser number, however, 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. Notwithstanding the foregoing, if any action to be taken by the
Shareholders or by a Series or Class at a meeting requires the affirmative vote
of more than 50% of all the votes entitled to be cast on the matter or requires
a majority of the outstanding voting securities (as defined in the 1940 Act),
then in such event the presence in person or by proxy of the holders of a
majority of the shares outstanding and entitled to vote at such a meeting shall
be a quorum for all purposes.
Except when a larger vote is required by any provisions of the
1940 Act, this Declaration of Trust or the By-Laws, and except for amendments to
this Declaration of Trust pursuant to Section 4 of Article IX hereof, a majority
of the Shares of each Series or Class voted on any matter shall decide such
matter insofar as that Series or Class is concerned, provided that where any
provision of law or of this Declaration of Trust permits or requires that the
holders of Shares vote in the aggregate and not as a Series or Class, then a
majority of the Shares voted on the matter (without regard to Series or Class)
shall decide such matter and a plurality shall elect a Trustee.
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Action by Written Consent
Section 4. Any action taken by Shareholders may be taken
without a meeting if Shareholders entitled to vote more than fifty percent (50%)
of the votes entitled to be cast on the matter of each Series or Class or, where
any provision of law or of this Declaration of Trust permits or requires that
the holders of Shares vote in the aggregate and not as a Series or Class, if
Shareholders entitled to vote more than fifty percent (50%) of the votes
entitled to be cast thereon (without regard to Series or Class) (or in either
case such larger vote as shall be required by any 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.
Additional Provisions
Section 5. The By-Laws may include further provisions for
Shareholders' votes and meetings and related matters not inconsistent with the
provisions hereof.
ARTICLE VI
Redemptions and Repurchases, and
Determination of Net Asset Value
Redemptions and Repurchases
Section 1. Any holder of Shares of the Trust may by
presentation of a request in proper form, together with his or her certificates,
if any, for such Shares, in proper form, for transfer to the Trust or duly
authorized agent of the Trust, request redemption of his or her shares for the
net asset value thereof determined and computed in accordance with the
provisions of this Section 1 and the provisions of Section 5 of this Article VI.
Upon receipt by the Trust or its duly authorized agent, as the
case may be, of such a request for redemption of Shares in proper form, such
Shares shall be redeemed at the net asset value per share of the particular
Series or Class next determined after such request is received or determined as
of such other time fixed by the Trustees as may be permitted or required by the
0000 Xxx. The criteria for determining what constitutes a proper request for
redemption and the time of receipt of such request shall be fixed by the
Trustees, and such criteria may be established in the Trust's then current
prospectus or established by the Trust's distributor or transfer agent, subject
to approval by the Trustees.
This obligation of the Trust to redeem its Shares of each
Series or Class as set forth above in this Section 1 shall be subject to the
condition that such obligation may be suspended by the Trust by or under
authority of the Trustees during any period or periods when and to the extent
permissible under the 1940 Act. If there is such a suspension, any Shareholder
may withdraw any request for redemption which has been received by the Trust
during any such period and the applicable net asset value with respect to which
would but for such suspension be calculated as of a time during such period.
Upon such withdrawal, the Trust shall return to the Shareholder the certificates
therefor, if any.
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The Trust may also purchase, repurchase or redeem Shares in accordance
with such other methods, upon such other terms and subject to such other
conditions as the Trustees may from time to time authorize at a price not
exceeding the net asset value of such Shares in effect when the purchase or
repurchase or any contract to purchase or repurchase is made. Shares of any
Series or Class redeemed or repurchased by the Trust hereunder shall be canceled
upon such redemption or repurchase without further action by the Trust or the
Trustees and the number of issued and outstanding Shares of such Series shall
thereupon be reduced by such amount, or Shares redeemed or repurchased may be
held by the Trust for resale.
Payment for Shares Redeemed
Section 2. Payment of the redemption price for Shares redeemed pursuant
to this Article VI shall be made by the Trust or its duly authorized agent after
receipt by the Trust or its duly authorized agent of a request for redemption in
proper for (together with any certificates for such Shares as provided in
Section 1 above) in accordance with procedures and subject to conditions
prescribed by the Trustees; provided, however, that payment may be postponed
during the period in which the redemption of Shares is suspended under Section 1
above. Subject to any generally applicable limitation imposed by the Trustees,
any payment on redemption, purchase or repurchase by the Trust of Shares may, if
authorized by the Trustees, be made wholly or partly in kind, instead of cash.
Such payment in kind shall be made by distributing securities or other property,
constituting, in the opinion of the Trustees, a fair representation of the
various types of securities and other property then held by the Series of Shares
being redeemed, purchased or repurchased (but not necessarily involving a
portion of each of the Series' holdings) and taken at their value used in
determining the net asset value of the Shares in respect of which payment is
made.
Redemptions at the Option of the Trust
Section 3. The Trust shall have the right at its option and at any time
and from time to time to redeem Shares of any Shareholder at the net asset value
thereof as determined in accordance with Section 5 of this Article VI, if at
such time such Shareholder owns fewer Shares of a Series or Class than, or
Shares of a Series or Class having an aggregate net asset value of less than, an
amount determined from time to time by the Trustees. Any such redemption at the
option of the Trust shall be made in accordance with such other criteria and
procedures for determining the Shares to be redeemed, the redemption date and
the means of effecting such redemptions as the Trustees may from time to time
authorize.
Additional Provisions Relating to Redemptions and Repurchases
Section 4. The completion of redemption, purchase or repurchase of
Shares shall constitute a full discharge of the Trust and the Trustees with
respect to such Shares. No dividend or distribution (including, without
limitation, any distribution paid upon termination of the Trust or of any Series
or Class) with respect to, nor any redemption or repurchase of, the Shares of
any Series or Class shall be effected by the Trust other than from the assets of
such Series.
Determination of Net Asset Value
Section 5. The term "net asset value" of each Share of a Series or
Class as of any particular time shall be the quotient, rounded to such extent as
the Trustees shall determine from time to time
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in a manner consistent with the 1940 Act, obtained by dividing the value of the
net assets of such Series or the net assets allocated to such Class less the
liabilities chargeable or allocated to such Series or Class pursuant to the
provisions of Article III, by the total number of Shares of such Series or Class
outstanding at such time, all determined and computed in accordance with the
Trust's current prospectus and statement of additional information. The net
asset value of each said share may be calculated in such other manner which may
be approved by the Trustees and is consistent with the 1940 Act.
The Trustees, or any officer, or officers or agent of the Trust
designated for the purpose by the Trustees shall determine the net asset value
of the Shares of each Series or Class, and the Trustees shall fix the time or
times as of which the net asset value of the Shares of each Series or Class
shall be determined and shall fix the periods during which any such net asset
value shall be effective as to sales, redemptions and repurchases of, and other
transactions in, the Shares of such Series or Class, except as such time and
periods for any such transaction may be fixed by other provision of this
Declaration of Trust or by the By-Laws.
Determinations in accordance with this Section 5 made in good faith
shall be binding on all parties concerned.
How Long Shares are Outstanding
Section 6. Shares of the Trust surrendered to the Trust for redemption
by it pursuant to the provisions of Section 1 of this Article VI shall be deemed
to be outstanding until the redemption price thereof is determined pursuant to
this Article VI and, thereupon and until paid, the redemption price thereof
shall be deemed to be a liability of the Trust. Shares of the Trust purchased by
the Trust in the open market shall be deemed to be outstanding until
confirmation of purchase thereof by the Trust and, thereupon and until paid, the
purchase price thereof shall be deemed to be a liability of the Trust. Shares of
the Trust redeemed by the Trust pursuant to Section 3 of this Article VI shall
be deemed to be outstanding until said Shares are deemed to be redeemed in
accordance with procedures adopted by the Trustees pursuant to said Section 3.
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 if the rate thereof is prescribed in advance by such
Trustees. 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, it being recognized that such
employment may result in such Trustee being considered an Affiliated Person or
an Interested Person.
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, investment
advisor or manager, principal underwriter or custodian, nor shall any Trustee be
responsible for the act or omission of any other Trustee.
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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, Share or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the Trust
shall be conclusively deemed to have been executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee and neither such
Trustees or Trustee nor the Shareholders shall be personally liable thereon.
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 that the same was executed or made by or on
behalf of the Trust 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 a particular Series of Shares, 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 Trustees or Trustee or officers
or officer of Shareholders or Shareholder individually.
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, as the case may
be, 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.
Trustees' Good Faith Action, Expert Advice, No Bond or Surety
Section 3. The exercise by the Trustees of their powers and discretion
hereunder shall be binding upon everyone interested. A Trustee shall be liable
only for or her his 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, and shall not be liable for errors of judgment or
mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust
and their duties as Trustees hereunder, and shall be under no liability for any
act or omission in accordance with such advice of for failing to follow such
advice. 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 any other
party to any contract entered into pursuant to Section 2 of Article IV. The
Trustees shall not be required to give any bond as such, nor any surety if a
bond is required.
Liability of Third Persons Dealing with Trustees
Section 4. 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.
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ARTICLE VIII
Indemnification
Subject to the exceptions and limitations contained in this Article,
every person who is, or has been, a Trustee or officer of the Trust (including
persons who serve at the request of the Trust as directors, officers or trustees
of another organization in which the Trust has an interest as a shareholder,
creditor or otherwise) hereinafter referred to as a "Covered Person," shall be
indemnified by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him or her in
connection with any claim, action, suit or proceedings in which he or she
becomes involved as a party or otherwise by virtue of his or her being or having
been such a Trustee, director or officer and against amounts paid or incurred by
him or her in settlement thereof.
No indemnification shall be provided to a Covered Person:
(a) against any liability to the Trust or its Shareholders by
reason of a final adjudication by the court of other body before which the
proceeding was brought that he or she engaged in willful misfeasance bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his or her office;
(b) with respect to any matter as to which he or she shall
have been finally adjudicated not to have acted in good faith in the reasonable
belief that his or her action was in the best interests of the Trust; or
(c) in the event of a settlement or other disposition not
involving a final adjudication (as provided in paragraph (a) or (b)) and
resulting in a payment by a Covered Person, unless there has been either a
determination that such Covered Person did not engage in willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office by the court of other body approving the settlement
or other disposition or a reasonable determination, based on a review of readily
available facts (as opposed to a full trial-type inquiry) that he or she did not
engage in such conduct:
(i) by a vote of 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
(ii)by written opinion of independent legal counsel.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any other
rights to which any Covered Person may now or hereafter be entitled, shall
continue as to a person who has ceased to be such a Covered Person and shall
inure to the benefit of the heirs, executors and administrators of such a
person. Nothing contained herein shall affect any rights to indemnification to
which the Trust personnel other than Covered Persons may be entitled by contract
or otherwise under law.
Expenses of preparation and presentation of a defense to any claim,
action, suit or proceeding subject to a claim for indemnification under this
Article shall be advanced by the Trust prior to final disposition thereof upon
receipt of an undertaking by or on behalf of the recipient to repay such
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amount if it is ultimately determined that he or she is not entitled to
indemnification under this Article, provided that either:
(1) such undertaking is secured by a surety bond or some other
appropriate security or the Trust shall be insured against losses arising out of
any such advances; or
(2) 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
determine, based upon a review of the readily available facts (as opposed to a
full trial-type inquiry), that there is reason to believe that the recipient
ultimately will be found entitled to indemnification.
As used in this Article, a "Disinterested Trustee" is one (a) who is
not an "interested person" of the Trust (as defined by the 1940 Act including
anyone who has been exempted from being an "interested person" by any rule,
regulation or order of the Securities and Exchange Commission), and (b) 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.
As used in this Article, the words "claim," "action," "suit" or
"proceeding" shall apply to all claims, actions, suits or proceedings (civil,
criminal or other, including appeals), actual or threatened; and the words
"liability" and "expenses" shall include without limitation attorneys' fees,
costs, judgments, amounts paid in settlement, fines, penalties and other
liabilities.
In case any Shareholder or former Shareholder shall be held to be
personally liable solely by reason of his or her being or having been a
Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or in the case of a corporation or
other entity, its corporate or other general successor) shall be entitled out of
the assets of the particular Series of Shares of which he or she is or was a
Shareholder to be held harmless from and indemnified against all loss and
expense arising from such liability; provided, however, there shall be no
liability or obligation of the Trust arising hereunder to reimburse any
Shareholder for taxes paid by reason of such Shareholder's ownership of Shares
or for losses suffered by reason of any changes in value of any trust assets.
Article IX
Miscellaneous
Duration, Termination and Reorganization of Trust
Section 1. Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any time by
the Trustees by written notice to the Shareholders without a vote of the
Shareholders of the Trust or by the vote of the Shareholders entitled to vote
more than fifty percent (50%) of the votes of each Series entitled to be cast on
the matter. Any Series or Class of Shares may be terminated at any time by the
Trustees by written notice to the Shareholders of such Series or Class without a
vote of the Shareholders of such Series or Class or by the vote of the
Shareholders of such Series or Class entitled to vote more than fifty percent
(50%) of the votes entitled to be cast on the matter.
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Upon termination of the Trust or of any one or more Series or Classes
of Shares, after paying or otherwise providing for all charges, taxes, expenses
and liabilities, whether due or accrued or anticipated, of the particular Series
or Class as may be determined by the Trustees, the Trust shall in accordance
with such procedures as the Trustees consider appropriate reduce the remaining
assets of the particular Series to distributable form in cash or other
securities, or any combination thereof, and distribute the proceeds to the
Shareholders of the Series involved, ratably according to the number of Shares
of such Series held by the several Shareholders of such Series on the date of
termination.
At any time by the affirmative vote of the Shareholders of the affected
Series entitled to vote more than fifty percent (50%) of all the votes entitled
to be cast on the matter, the Trustees may sell, convey and transfer the assets
of the Trust, or the assets belonging to any one or more Series, 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 Series of the Trust, in exchange for cash, shares or other securities
(including, in the case of a transfer to another Series of the Trust, in
exchange for cash, shares or other securities (including, in the case of a
transfer to another Series of the Trust, Shares of such other Series)) with such
transfer being made subject to, or with the assumption by the transferee of, the
liabilities belonging to each Series the assets of which are so distributed.
Following such transfer, the Trustees shall distribute such cash, shares or
other securities (giving due effect to the assets and liabilities belonging to
and any other differences among the various Series the assets belonging to which
have so been transferred) among the Shareholders of the Series the assets
belonging to which have been so transferred; and if all of the assets of the
Trust have been so transferred, the Trust shall be terminated.
Filing of Copies, References, Headings
Section 2. 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. 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 from time to time. 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 3. This Declaration of Trust is created under and is to be
governed by and construed and administered according to the laws of the
Commonwealth of Massachusetts. 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
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Section 4. 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
so to do by vote of the lesser of (i) 67% or more of the Shares present or
represented by proxy at a Shareholders' meeting, if the holders of more than 50%
of the outstanding Shares are present or represented by proxy, or (ii) more than
50% of the outstanding Shares (the "required vote"), provided, however, if an
amendment shall affect the holders of one or more Series or Classes of Shares
but not the holders of Shares of all outstanding Series and Classes, such
amendment shall be authorized if approved by the required vote of the
Shareholders of each Series or Class affected and no vote of Shareholders of a
Series or Class not affected shall be required. 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 provision which is
defective or inconsistent with the 1940 Act or with the requirements of the
Internal Revenue Code and the regulations thereunder for the Trust's obtaining
the most favorable treatment thereunder available to regulated investment
companies or of establishing and designating or abolishing any Series or Class
of Shares in accordance with Section 1 of Article III hereof shall not require
authorization by Shareholder vote.
Use of the Name
Section 5. The use of the name of the Trust and of any Series or Class
of shares of the Trust is granted pursuant to a royalty-free, non-exclusive
license from Xxxxxxxxxxx Management Corporation ("OMC"), and such license shall
allow OMC to inspect and, subject to the control of the Trustees, to control the
nature and quality of services offered by the Trust under such name. The license
may be terminated by OMC upon termination of any advisory, management or
supervisory contact between OMC and the Trust or without cause upon 60 days'
written notice to the Trust by OMC in which case neither the Trust nor any
Series or class of the Trust shall have any further right to use the name
"Xxxxxxxxxxx" in its name or otherwise, and the Trust, its Shareholders, and its
officers and Trustees shall promptly take whatever action may be necessary to
change its name accordingly.
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IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the 23rd day of June, 1995.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxx, Xx.
Xxxxxxx X. Xxxxx, Trustee Xxxxxxx Xxxxxx, Xx., Trustee
000 Xxxxxx Xxxxx Xxxxx 00000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
/s/ Xxx X. Steel /s/ Xxxxxx X.Xxxxxxxx
Xxx X. Steel, Trustee Xxxxxx X. Xxxxxxxx, Trustee
0000 X. Xxxxxx Xxxxxx 0000 X. Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxxxxx /s/ C. Xxxxxx Xxxx
Xxxxxxx X. Xxxxxxxxxx, Trustee C. Xxxxxx Xxxx, Trustee
00 Xxxxxxxx Xxxxx 0000 Xxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxx 00000
/s/ Xxxxx X. Xxxxx /s/ Xxx X. Xxxxxx
Xxxxx X. Xxxxx, Trustee Xxx X. Xxxxxx, Trustee
Xxx 00 - Xxxx Xxxxxx Xxx 00 - Xxxx Xxxxxx
Waccabuc, New York 10597 Xxxxxxxx, Xxx Xxxx 00000
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, Trustee
0000 Xxxxxx Xxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
