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EXHIBIT 99.B1
XXXXXX TOTAL RETURN FUND
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
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WHEREAS, Article IX, Section 4 of the Agreement and
Declaration of Trust of Xxxxxx Total Return Fund dated
October 24, 1985, provides that the Agreement and 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 Shareholders holding a
majority of the Shares entitled to vote; and
WHEREAS, the holders of a majority of the Shares
entitled to vote have authorized this Amendment and
Restatement of said Agreement and Declaration of Trust;
NOW, THEREFORE, said Agreement and Declaration of Trust
is amended and restated to read in its entirety as follows:
WITNESSETH
WHEREAS, this Trust has been formed for the purposes of
carrying on the business of a management investment company;
and
WHEREAS, 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;
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 to manage and dispose
of the same upon the following terms and conditions for the
pro rata benefit of the holders from time to time of shares
in this Trust as hereinafter set forth.
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ARTICLE I
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NAME AND DEFINITIONS
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NAME AND REGISTERED AGENT
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SECTION 1. This Trust shall be known as Xxxxxx Total
Return 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. The registered agent for the Trust
in Massachusetts shall be CT Corporation System whose address
is 0 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx or such other
person as the Trustees may from time to time designate.
DEFINITIONS
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SECTION 2. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Massachusetts voluntary
association established by this Agreement and Declaration of
Trust, as 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 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 under or pursuant to
Article III, the equal proportionate transferable units of
interest into which each such series or class 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 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"
shall have the meanings given them in the 1940 Act;
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(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 6 of Article VI hereof;
(j) The terms "series" or "series of Shares" refers to
the one or more separate investment portfolios of the Trust
authorized under or pursuant to Article III 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
(k) The terms "class" or "class of Shares" refers to
the division of Shares representing any series into two or
more classes authorized under or pursuant to Article III.
ARTICLE II
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NATURE AND PURPOSE
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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
things as are necessary, convenient, appropriate, incidental
or customary in connection therewith.
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ARTICLE III
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SHARES
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DIVISION OF BENEFICIAL INTEREST
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SECTION 1. The Shares of the Trust shall be issued in
one or more series as the Trustees may, without Shareholder
approval, authorize from time to time. Each series shall be
preferred over all other series in respect of the assets
allocated to that series as hereinafter provided. The
beneficial interest in each series shall at all times be
divided into Shares (without par value) of such series, each
of which shall, except as provided in the following sentence,
represent an equal proportionate interest in such series with
each other Share of the same series, none having priority or
preference over another Share of the same series. 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
or privileges (including conversion rights, if any) as the
Trustees may determine. The number of Shares authorized
shall be unlimited, and the Shares so authorized may be
represented in part by fractional Shares. 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. Without limiting the authority of the Trustees set
forth in this Section 1 to establish and designate any
further series or class, the Trustees hereby establish and
designate one series of Shares to be known as the "Initial
Portfolio." The establishment and designation of any series
or class of Shares in addition to the foregoing shall be
effective upon the execution by a majority of the then
Trustees of an instrument setting forth such establishment
and designation and the relative rights and preferences of
such series or class. As provided in Article IX, Section 1
hereof, any series or class of Shares (whether or not there
shall then be Shares outstanding of said series or class) may
be terminated by the Trustees by written notice to 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. In the event of any such termination, a majority
of the then Trustees shall execute an instrument setting
forth the termination of such series or class.
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OWNERSHIP OF SHARES
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SECTION 2. The ownership and transfer of Shares shall
be recorded on the books of the Trust or its transfer or
similar agent. No certificates certifying the ownership of
Shares shall be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such
rules as they consider appropriate for the issuance of Share
certificates, the transfer of Shares and similar matters.
The record books of the Trust as kept by the Trust or any
transfer or similar agent of the Trust, as the case may be,
shall be conclusive as to who are the Shareholders of each
series or class and as to the number of Shares of each series
or class held from time to time by each Shareholder.
INVESTMENT IN THE TRUST; ASSETS OF A SERIES
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SECTION 3. The Trustees may issue 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 time to time authorize.
All consideration received by the Trust for the issue or
sale of Shares of a particular 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 such series of Shares 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. Any
allocation of the assets of a series among any classes of
Shares of such series shall be made in a manner consistent
with the preferences and special or relative rights or
privileges of such classes.
RIGHT TO REFUSE ORDERS
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SECTION 4. 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 therefore
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 Trust may from time to time set minimum
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and/or maximum amounts which may be invested in Shares by a
subscriber.
ORDER IN PROPER FORM
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SECTION 5. 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.
WHEN SHARES BECOME OUTSTANDING
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SECTION 6. 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
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SECTION 7. 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 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.
NO PREEMPTIVE RIGHTS, ETC.
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SECTION 8. Shareholders shall have no preemptive or
other right 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 and, except as otherwise determined by the
Trustees in their sole discretion, shall have no exchange or
conversion rights with respect to their Shares.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
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SECTION 9. 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
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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 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
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SECTION 10. Any Shareholder or his 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
10 of this Article III or except as otherwise determined by
the Trustees.
ARTICLE IV
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THE TRUSTEES
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NUMBER, DESIGNATION, ELECTION, TERM, ETC.
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SECTION 1.
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(a) INITIAL TRUSTEE. Xxxxxx X. Xxxxxxx, the initial
Trustee, appointed other Trustees pursuant to subsection (c)
of this Section 1 and then resigned.
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(b) NUMBER. The Trustees serving as such, whether
named above or hereafter becoming Trustees, 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 except during the period
that the initial Trustee named above is sole Trustee. No
decrease in the number of Trustees shall have the effect of
removing any Trustee from office prior to the expiration of
his term, but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to
subsection (e) of this Section 1.
(c) TERM AND ELECTION. Each Trustee, whether named
above or hereafter becoming a Trustee, shall serve as a
Trustee until the next meeting of Shareholders, if any,
called for the purpose 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. Prior to
any sale of Shares pursuant to any public offering, the
initial Trustee named above shall have the right to appoint
other persons as Trustees each to serve as Trustees as
aforesaid until the first meeting of Shareholders called for
the purpose of the election or re-election of such Trustee or
of a successor to such Trustee.
(d) RESIGNATION AND RETIREMENT. Any Trustee may resign
his trust or retire as a Trustee, by written instrument
signed by him and delivered to the other Trustees or to the
Chairman of the Board, if any, the President or the Secretary
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.
(e) 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 vote more
than fifty percent (50%) of the votes 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.
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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.
(f) VACANCIES. Any vacancy or anticipated vacancy
resulting from any reason, including without limitation the
death, resignation, retirement, removal or incapacity of any
of the Trustees, or resulting from an increase in the number
of Trustees by the other Trustees may (but so long as there
are at least 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. Upon the
appointment or election and qualification of a new Trustee as
aforesaid, the Trust estate shall vest in the new Trustee,
together with the continuing Trustees, without any further
act or conveyance, 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.
(g) 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
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shall be restricted if such appointment would result in
failure of the Trust to comply with any provision of the 1940
Act.
(h) 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.
(i) NO ACCOUNTING. Except under circumstances which
would justify his removal for cause, no person ceasing to be
a Trustee as a result of his 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
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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
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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 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;
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(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 depositary or a nominee or nominees or otherwise;
(h) Subject to the provisions of Article III, 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 a particular series 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 or 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;
(i) To consent to or 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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(j) 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;
(k) 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;
(l) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(m) To borrow funds;
(n) 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;
(o) 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 distribution 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
(p) 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
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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 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
by 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, ALLOCATION OF LIABILITIES
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SECTION 3. The Trustees are authorized to pay or to
cause to be paid out of the principal or income of the Trust,
or partly out of principal and partly out of income, as they
deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust, or in
connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and
charges for the services of the Trust's officers, employees,
investment adviser or manager, principal underwriter,
auditor, counsel, custodian, transfer agent, shareholder
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.
The assets of a particular series of Shares shall be
charged with the liabilities (including, in the discretion of
the Trustees or their delegate, accrued expenses and
reserves) incurred in respect of such series (but not with
liabilities incurred in respect of any other series) and such
series shall also be charged with its share of any other
liabilities. Any allocation of the liabilities of a series
among classes of Shares of that series shall be done in a
manner consistent with the preferences and special or
relative rights or privileges of such classes. The
determination of the Trustees shall be final and conclusive
as to the amount of liabilities to be charged to one or more
particular series or class. The Trustees may delegate from
time to time the power to make such allocation to one or more
Trustees or to an agent of the Trust appointed for such
purpose. The liabilities with which a series is so charged
are herein referred to as the "liabilities of" such series.
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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 for 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
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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
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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 for such series 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.
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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 or has an 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 distrib-
utor'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 Share-
holders.
ARTICLE V
---------
SHAREHOLDERS' VOTING POWERS AND MEETINGS
----------------------------------------
VOTING POWERS
-------------
SECTION 1. Subject to the voting provisions of one or
more classes of Shares, 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 or class 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; and (e) 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 registration of the Trust with the
Securities and Exchange Commission (or any successor agency)
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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, except to
the extent otherwise required or permitted by the preferences
and special or relative rights or privileges of any class of
Shares, be voted by individual series and not in the
aggregate or by class, 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 classes, 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.
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
By-Laws to be taken by Shareholders of such series or class.
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 President 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 upon
written application by Shareholders holding at least twenty-
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five percent (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 of all series and
classes entitled to vote at such meeting 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.
Except when a larger vote is required by any provisions
of the 1940 Act, this Declaration of Trust or the By-Laws, a
majority of the Shares of each series or class voted on the
matter shall decide that matter insofar as that series or
class is concerned, provided that where any provision of law,
this Declaration of Trust or the By-Laws 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 any
matter (without regard to series or class) shall decide such
matter and a plurality shall elect a Trustee.
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, this Declaration of Trust or the By-Laws permits or
requires that the holders of Shares vote in the aggregate and
not as a series or class, if Shareholders entitled to vote
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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
----------
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES,
-------------------------------------------
AND DETERMINATION OF NET ASSET VALUE
------------------------------------
DISTRIBUTIONS
-------------
SECTION 1. The Trustees may in their sole discretion
from time to time distribute to the Shareholders of any
series such income and gains, accrued or realized, as the
Trustees may determine, after providing for actual and ac-
crued expenses and liabilities of such series (including such
reserves as the Trustees may establish) determined in accor-
dance with this Declaration of Trust and good accounting
practices. The Trustees shall have full discretion to deter-
mine which items shall be treated as income and which items
as capital and their determination shall be binding upon the
Shareholders. Distributions to any series, if any be made,
shall be in Shares of such series, in cash or otherwise and
on a date or dates determined by the Trustees. At any time
and from time to time in their discretion, the Trustees may
distribute to the Shareholders of any series as of a record
date or dates determined by the Trustees, in Shares of such
series, in cash or otherwise, all or part of any gains real-
ized on the sale or disposition of property of the series or
otherwise, or all or part of any other principal of the Trust
attributable to the series. Except to the extent otherwise
required or permitted by the preferences and special or
relative rights or privileges of any classes of Shares of
that series, each distribution pursuant to this Section 1
shall be made ratably according to the number of Shares of
the series held by the several Shareholders on the applicable
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record date thereof, provided that distributions from assets
of a series may only be made to the holders of the Shares of
such series and provided that no distributions need be made
on Shares purchased pursuant to orders received, or for which
payment is made, after such time or times as the Trustees may
determine. Any distribution to the Shareholders of a partic-
ular class of Shares shall be made to such Shareholders
prorata in proportion to the number of Shares of such class
held by each of them. Any distribution paid in Shares will
be paid at the net asset value thereof as determined in
accordance with this Declaration of Trust. The Trustees have
the power, in their discretion, to distribute for any year
amounts sufficient to enable the Trust to qualify as a "regu-
lated investment company" under the Internal Revenue Code as
amended (or any successor thereto) to avoid any liability for
federal income tax in respect of that year.
REDEMPTIONS AND REPURCHASES
---------------------------
SECTION 2. Any holder of Shares of the Trust may, by
presentation of a request in proper form, together with his
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 shares for the net asset value
thereof determined and computed in accordance with the
provisions of this Section 2 and the provisions of Section 6
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 request for redemption in
proper form and the time of receipt of such request shall be
fixed by the Trustees.
The obligation of the Trust to redeem its Shares as set
forth above in this Section 2 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 Trustee 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 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 the relevant series and
class shall thereupon by reduced by such amount.
PAYMENT FOR SHARES REDEEMED
---------------------------
SECTION 3. 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 form (together with any certificates for such Shares
as provided in Section 2 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 2 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 in cash. Such payment in kind shall be
made by distributing securities or other property,
constituting, in the opinion of the Trustees, a fair
representation of the various types of securities and other
property then held by the series of Shares being redeemed,
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 4. 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 6 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
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redemption date and the means of effecting such redemption as
the Trustees may from time to time authorize.
ADDITIONAL PROVISIONS RELATING TO DIVIDENDS, REDEMPTIONS AND
------------------------------------------------------------
REPURCHASES
-----------
SECTION 5. 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 6. The term "net asset value" of each Share of
a series or class as of any particular time shall be the
quotient obtained by dividing the value, as at such time, of
the net assets of such series or class (i.e., the value of
the assets of such series or class less the liabilities of
such series or class, exclusive of liabilities represented by
the Shares of such series or class) 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.
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 times
and periods for any such transaction may be fixed by other
provisions of this Declaration of Trust or by the By-Laws.
Determinations in accordance with this Section 6 made in
good faith shall be binding on all parties concerned.
HOW LONG SHARES ARE OUTSTANDING
-------------------------------
SECTION 7. Shares of the Trust surrendered to the Trust
for redemption by it pursuant to the provisions of Section 2
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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 4 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 4.
ARTICLE VII
-----------
COMPENSATION AND LIMITATION OF LIABILITY OF
-------------------------------------------
TRUSTEES AND SHAREHOLDERS
-------------------------
SECTION 1. The Trustees as such shall be entitled to
reasonable compensation from the Trust if the rate thereof is
prescribed 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.
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 Trustee
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 capacity as Trustees or Trustee
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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 State 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 they may deem appropriate, but the omission
thereof shall not operate to bind any Trustees or Trustee or
officers or officer or 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 discretions hereunder shall be binding upon everyone
interested. A Trustee shall be liable only for 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 or 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.
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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.
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 in
connection with any claim, action, suit or proceeding in
which he becomes involved as a party or otherwise by virtue
of his being or having been such a Trustee, director or
officer and against amounts paid or incurred by him in
settlement thereof.
No indemnification shall be provided hereunder to a
Covered Person:
(a) against any liability to the Trust or its
Shareholders by reason of a final adjudication by the court
or other body before which the proceeding was brought that he
engaged in willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct
of his office;
(b) with respect to any matter as to which he
shall have been finally adjudicated not to have acted in good
faith in the reasonable belief that his action was in the
best interest 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 office
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26
by the court or 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 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
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
amount if it is ultimately determined that he is not entitled
to indemnification under this Article, provided that either:
(a) 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
(b) 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 in the 1940 Act (including anyone who has been
exempted from being an "interested person" by any rule,
regulation or order of the Commission), and (b) against whom
none of such actions, suits or other proceedings or another
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27
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,
cost, 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 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; 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 or class 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 to the extent necessary
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 or class involved, ratably
according the number of Shares of such series or class held
by the several Shareholders of such series or class on the
date of termination. Any such distributions with respect to
any series which has one or more classes of Shares
outstanding shall be made ratably to such classes in the same
proportion as the number of Shares of each class bears to the
total number of Shares of the series, except to the extent
otherwise required or permitted by the preferences and
special or relative rights or privileges of any classes of
Shares of any such series.
At any time by the affirmative vote of the Shareholders
of the affected series entitled to vote more than fifty
percent (50%) of 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, 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 the
assets of the Trust have been so distributed, 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
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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 any 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 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 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
Shareholders holding more than fifty percent (50%) of the
Shares of each series 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 more
than fifty percent (50%) of the Shares entitled to vote 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
29
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the Trust's obtaining the most favorable treatment thereunder
available to regulated investment companies shall not require
authorization by Shareholder vote.
IN WITNESS WHEREOF, the undersigned have hereunto set
their hands and seals for themselves and their assigns, as of
this 27th day of May, 1994.
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
(SEAL) Xxxxxxx X. Xxxxxxxx, Trustee
000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
(signatures continue)
30
31
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx, Trustee
0000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx, Trustee
00000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx, Trustee
000X Xxxxx Xxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx, Trustee
0000 Xxxxx Xxxx Xxxxx Xxxxx,
Xxx. 0-0X
Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx, Trustee
0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
------------------------------
Xxxxxxx X. Xxxxxxxx, Trustee
000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
0000 Xxxxxxxx Xxx.
Xxxxxxxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
0000 Xxxxx Xxxx Xxxxx Xxxxx,
Xxx. 00-0/0X
Xxxxxxx, Xxxxxxxx 00000
32
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
Then personally appeared the afore-named Xxxxx X. Xxxxx,
Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxxxx who acknowledged the foregoing instrument
to be their free act and deed, before me this 27th day of
May, 1994.
/s/ Xxxx X. XxXxxxxxxxx
------------------------------
NOTARY PUBLIC
32
