EXHIBIT 99.1
MML SERIES INVESTMENT FUND
RESTATED AS OF MAY 14, 1993
AGREEMENT AND DECLARATION OF TRUST
TABLE OF CONTENTS
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Recitals.............................................................. 1
ARTICLE I: NAME AND DEFINITIONS
Section 1 Name........................................................ 1
Section 2 Definitions................................................. 1
ARTICLE II: PURPOSE OF THE TRUST
ARTICLE III: SHARES
Section 1 Division of Beneficial Interest............................. 2
Section 2 Ownership of Shares......................................... 3
Section 3 Investment in the Trust..................................... 3
Section 4 No Preemptive Rights, etc................................... 3
Section 5 Status of Shares and Limitation of Personal Liability....... 3
ARTICLE IV: THE TRUSTEES
Section 1 Election, Term of Office and Removal....................... 4
Section 2 Vacancies.................................................. 5
Section 3 Powers..................................................... 5
Section 4 Action by Trustees......................................... 8
Section 5 Payment of Expenses by the Trust........................... 8
Section 6 Ownership of Assets of the Trust........................... 9
Section 7 Advisory, Management and Distribution...................... 9
ARTICLE V: SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1 Voting Powers............................................. 10
Section 2 Meetings.................................................. 11
Section 3 Quorum and Required Vote.................................. 11
Section 4 Action by Written Consent................................. 11
Section 5 Additional Provisions..................................... 12
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ARTICLE VI: DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES
Section 1 Distributions............................................... 12
Section 2 Redemptions and Repurchases................................. 12
Section 3 Redemptions at the Option of the Trust...................... 13
Section 4 Dividends, Distributions, Redemptions and Repurchases....... 13
ARTICLE VII: COMPENSATION AND LIMITATION OF
LIABILITY OF TRUSTEES
Section 1 Compensation................................................ 13
Section 2 Limitation of Liability..................................... 13
ARTICLE VIII: INDEMNIFICATION
Section 1 Trustees, Officers, etc..................................... 14
Section 2 Compromise Payment.......................................... 15
Section 3 Indemnification Not Exclusive............................... 15
Section 4 Shareholders................................................ 16
ARTICLE IX: MISCELLANEOUS
Section 1 Trustees, Shareholders, etc. Not Personally Liable; Notice.. 16
Section 2 Trustee's Good Faith Action, Expert Advice, No Bond or
Surety.................................................... 17
Section 3 Liability of Third Persons Dealing with Trustees............ 17
Section 4 Duration and Termination of Trust........................... 17
Section 5 Filing of Copies, References, Headings...................... 17
Section 6 Applicable Law.............................................. 18
Section 7 Amendments.................................................. 18
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RESTATED AGREEMENT AND DECLARATION OF TRUST (the "Restated Declaration
of Trust") made at Springfield, Massachusetts, this 14th day of May, 1993,
approved by the Board of Trustees of MML Series Investment Fund (the "Trust")
and approved by the holders of shares of beneficial interest of the Trust.
WITNESSETH that
WHEREAS, the Trust was formed on December 19, 1984 pursuant to the
terms of an Agreement and Declaration of Trust (the "Declaration of Trust") for
the purpose of conducting the business of an investment company;
WHEREAS, the Trust's Board of Trustees (the "Board of Trustees")
agreed to manage all property coming into their hands as Trustees of a
Massachusetts voluntary association with transferable shares in accordance with
the provisions hereinafter set forth;
WHEREAS, the Declaration of Trust was amended on April 29, 1985 (the
"Amended Declaration of Trust");
WHEREAS, the Board of Trustees approved additional amendments to the
Amended Declaration of Trust at a meeting of the Board of Trustees held on
February 5, 1993 and said amendments were also approved by the holders of shares
of beneficial interest of the Trust at the April 16, 1993 Annual Meeting of
Shareholders of the Trust.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets, which they may from time to time acquire in
any manner as Trustees hereunder IN TRUST to manage and dispose of the same upon
the following terms and conditions for the pro rata benefit of the holders from
time to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as "MML Series Investment
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.
Section 2. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust
established by the Declaration of Trust, as amended from time to time;
(b) "Trustees" refers to the Trustees of the Trust named herein
or elected in accordance with Article IV;
(c) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest in the Trust shall be divided
from time to time or, if more than one series of Shares is authorized by
the Trustees, the equal proportionate transferable units into which each
series of Shares shall be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as amended from time to time;
(f) The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person", "Principal Underwriter" and "Majority Shareholder
Vote" (the 67% or 50% requirement of the third sentence of Section 2(a)(42)
of the 1940 Act, whichever may be applicable) shall have the meanings given
them in the 1940 Act;
(g) "Declaration of Trust" shall mean the Agreement and
Declaration of Trust of December 19, 1984, as amended or restated from time
to time;
(h) "Restated Declaration of Trust" shall mean this Restated
Agreement and Declaration of Trust, as of May, 1993, as amended or restated
from time to time; and
(i) "Bylaws" shall mean the Bylaws of the Trust as amended from
time to time.
ARTICLE II
Purpose of the Trust
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The purpose of the Trust is to provide investors a managed investment
primarily in securities, debt instruments and other investments.
ARTICLE III
Shares
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Section 1. Division of Beneficial Interest. The Shares of the Trust
shall be issued in one or more series as the Trustees may, without shareholder
approval, authorize. Each series shall be preferred over all other series in
respect of the assets allocated to that series. The beneficial interest in each
series shall at all times be divided into Shares, with or without par value as
the Trustees may prescribe, each of which shall represent an equal proportionate
interest in the series with each other Share of the same series, none having
priority or preference over another. The number of Shares authorized shall be
unlimited. The Trustees may from time to time divide or combine the Shares into
a greater or lesser number without thereby changing the proportionate beneficial
interests in the series.
Section 2. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent. No
certificates certifying the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the issuance of Share certificates, the
transfer of Shares and similar matters. The record books of the Trust as kept
by the Trust or any transfer or similar agent, as the case may be, shall be
conclusive as to who are the Shareholders of each series and as to the number of
Shares of each series held from time to time by each Shareholder.
Section 3. Investment in the Trust. The Trustees shall accept
investments in the Trust from such persons and on such terms and for such
consideration, which may consist of cash or tangible or intangible property or
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a combination thereof, as they from time to time authorize. When Shares of the
Trust have been issued for such consideration, such Shares shall be fully paid
and nonassessable.
All consideration received by the Trust for the issue or sale of
Shares of each series, together with all income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or liquidation
thereof, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably belong to the
series of Shares with respect to which the same were received by the Trust for
all purposes and shall be so handled upon the books of account of the Trust and
are herein referred to as "assets of" such series.
Section 4. No Preemptive Rights, etc. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust, and shall have no appraisal or conversion rights
with respect to the Shares of the Trust owned by them.
Section 5. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this Declaration of Trust. Every Shareholder by virtue of having become a
Shareholder shall be held to have expressly assented and agreed to the terms
hereof and to have become a party hereto. The death of a Shareholder during the
continuance of the Trust shall not operate to terminate the Trust 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 assets of the
Trust or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust shall have any power to bind personally any Shareholder, nor
except as specifically provided herein, to call upon any Shareholder for the
payment of any sum of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay.
ARTICLE IV
The Trustees
Section 1. Election, Term of Office and Removal. The Shareholders
shall elect a Board of Trustees. Each Trustee shall serve until the next
meeting of Shareholders held for the purpose of electing Trustees and until his
or her successor is elected and qualified, or until such Trustee sooner dies,
resigns, retires, becomes incapacitated, or is removed as hereinafter provided.
By a vote of a majority of the Trustees then in office, the Trustees may fix the
number of Trustees and may fill vacancies, including vacancies created by an
increase in the number of Trustees.
Any Trustee may resign his or her trust (without need for prior or
subsequent accounting) by an instrument in writing signed by him or her and
delivered to the Chairman of the Board, or the Secretary, or any Assistant
Secretary, and the Trust may accept the resignation upon delivery or as of any
later date, up to and including any date specified in the instrument. Any of
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the Trustees may be removed with or without cause by the affirmative vote of a
majority of the remaining Trustees.
Any Trustee may also be removed by Shareholders by either (1) a vote
of Shareholders of record holding not less than two-thirds of the Shares then
outstanding, cast in person or by proxy at a meeting of Shareholders
specifically called for that purpose, or (2) a written declaration filed with
the Secretary of the Trust signed by Shareholders of record holding not less
than two-thirds of the Shares then outstanding. The Trustees shall promptly
call a meeting of Shareholders for the purpose of voting upon the question of
removal of any or all of the Trustees when requested in writing to do so by the
record holders of not less than 10% of the Shares then outstanding.
The death, declination, resignation, retirement, removal or incapacity
of the Trustees, or any one of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration of
Trust.
Section 2. Vacancies. The Trustees may fill any vacancy by written
instrument signed by a majority of the Trustees then in office, provided that
immediately after filling any such vacancy, at least two-thirds of the Trustees
then holding office shall have been elected to such office by the Shareholders.
In the event that at any time less than a majority of the Trustees
holding office at that time were elected by the Shareholders, a special meeting
of Shareholders pursuant to Article V, Section 2 shall be held promptly and in
any event within 60 days (unless the Commission shall by order extend such
period), for the purpose of electing Trustees to fill any existing vacancies.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy is
filled as provided in this Section, the Trustees in office, regardless of their
number, shall have all the powers granted to the Trustees and shall discharge
all the duties imposed upon the Trustees by this Declaration of Trust.
Whenever ten or more Shareholders who have been such for at least six
months preceding the date of application and who hold in the aggregate either
Shares having a net asset value of at least $25,000 or at least 1% of the
outstanding Shares of the Trust, whichever is less, shall apply to the Trustees
in writing, stating that they wish to communicate with other Shareholders with a
view to obtaining signatures to a request for a meeting for consideration of the
removal of any or all of the Trustees and accompanied by a form of communication
and request which they wish to transmit, the Trustees shall within five business
days after receipt of such application either (1) afford to such applicants
access to a list of the names and addresses of all Shareholders as recorded on
the books of the Trust; or (2) inform such applicants as to the approximate
number of Shareholders of record, and the approximate cost of mailing to them
the proposed communication and form of request. If the Trustees elect to follow
the course specified in clause (2) of the preceding sentence, the Trustees shall
comply with the provisions of Section 16(c) of the 1940 Act or any successor
thereto, and any rule, release or order promulgated thereunder.
Section 3. Powers. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees, and they
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shall have all powers necessary or convenient to carry out that responsibility.
Without limiting the foregoing, the Trustees may: adopt Bylaws not inconsistent
with this Declaration of Trust providing for the conduct of the business of the
Trust and may amend and repeal them to the extent that such Bylaws do not
reserve that right to the Shareholders; fill vacancies in their number
(including any vacancies created by an increase in the number of Trustees) or
remove from their number; 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 power and authority of the Trustees as
the Trustees may determine; employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ subcustodians and to deposit
all or any part of such assets in a system or systems for the central handling
of securities; retain a transfer agent or a Shareholder servicing agent, or
both, to provide for the distribution of Shares by the Trust, through one or
more principal underwriters or otherwise, set record dates for the determination
of Shareholders with respect to various matters, and in general delegate such
authority as they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the Trust or to any
such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the assets of the Trust;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such power
and discretion with relation to securities or property as the Trustees
shall deem proper;
(d) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in the
name of the Trustees or of the Trust or in the name of a custodian,
subcustodian or other depositary or a nominee or nominees or otherwise;
(f) To allocate assets, liabilities and expenses of the Trust to a
particular series of Shares or to apportion the same among two or more
series, provided that any investment in a particular series of Shares shall
be an asset of that series, and that any liabilities or expenses incurred
by a particular series of Shares shall be payable solely out of the assets
of that series.
(g) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security of which
is or was held by the Trust; to consent to any
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contract, lease, mortgage, purchase or sale of property by such corporation
or issuer, and to pay calls or subscriptions with respect to any assets
held by the Trust;
(h) 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;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited
to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(k) To borrow funds;
(l) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge
the Trust property or any part thereof to secure any of or all such
obligations;
(m) To purchase and pay for entirely out of the assets of the Trust
such insurance as they may deem necessary or appropriate for the conduct of
the business, including without limitation, insurance policies insuring the
assets of the Trust and payment of distributions and principal on its
portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisers or managers,
principal underwriters, or independent contractors of the Trust
individually against all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such
person as Shareholder, Trustee, officer, employee, agent, investment
adviser or manager, principal underwriter, or independent contractor,
including any action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to indemnify such
person against such liability; and
(n) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, profit-sharing,
deferred compensation, 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.
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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.
Section 4. Action by Trustees. Except as otherwise provided herein or
from time to time in the Bylaws, any action to be taken by the Trustees may be
taken by a majority of the Trustees present at a meeting of Trustees (a quorum
being present, as provided herein or in the Bylaws), within or without
Massachusetts, including any meeting held by means of a conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting, or by written consents of a
majority of the Trustees then in office, provided such written consents are
filed with the records of the meetings of Trustees. Such consent shall be
treated for all purposes as a vote taken at a meeting of Trustees.
Section 5. Payment of Expenses by the Trust. 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, or to
arrange for the Shareholders to pay, in whole or in part, all expenses, fees,
charges, taxes and liabilities incurred or arising in connection with the Trust,
or in connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser or manager, principal
underwriter, auditor, counsel, custodian, transfer agent, Shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur, provided,
however, that all expenses, fees, charges, taxes and liabilities incurred or
arising in connection with a particular series of Shares as determined by the
Trustees, shall be payable solely out of the assets or by the Shareholders of
that series.
Section 6. Ownership of Assets of the Trust. Title to all of the assets
of each series of Shares and of the Trust shall at all times be considered as
vested in the Trustees.
Section 7. Advisory, Management and Distribution. Subject to a favorable
Majority Shareholder Vote, the Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory and/or management services with
any corporation, trust, association or other organization (the "Manager"), every
such contract to comply with such requirements and restrictions as may be set
forth in the Bylaws; and any such contract may contain such other terms
interpretive of or in addition to said requirements and restrictions as the
Trustees may determine, including, without limitation, authority to determine
from time to time what investments shall be purchased, held, sold or exchanged
and what portion, if any, of the assets of the Trust or any series of Shares
shall be held uninvested and to make changes in the investments of the Trust or
any series of Shares. The Trustees may also, at any time and from time to time,
contract with the Manager or any other corporation, trust, association or other
organization, appointing it exclusive or nonexclusive distributor or principal
underwriter for the Shares, every such contract to comply with such requirements
and restrictions as may be set forth in the Bylaws; and any such contract may
contain such other terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine. The fact that:
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(a) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
corporation, trust, association, or other organization, or of or for any
parent or affiliate of any organization, with which an advisory or
management contract, or principal underwriter's or distributor's contract,
or transfer, Shareholder servicing or other agency contract may have been
or may hereafter be made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in the Trust, or
that
(b) any corporation, trust, association or other organization with
which an advisory or management contract or principal underwriter's or
distributor's contract, or transfer, Shareholder servicing or other agency
contract may have been or may hereafter be made also has an advisory or
management contract, or principal underwriter's or distributor's contract,
or transfer, Shareholder servicing or other agency contract with one or
more other corporations, trusts, associations, or other organizations, or
has other business or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. The Shareholders shall have power to vote only
(a) for the election of Trustees and with respect to the removal of Trustees
pursuant to Article IV, Sections 1 and 2; (b) with respect to any Manager as
provided in Article IV, Section 6, (c) with respect to any termination of this
Trust to the extent and as provided in Article IX, Section 4, (d) with respect
to any amendment of this Declaration of Trust to the extent and as provided in
Article IX, Section 7, (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
this Declaration of Trust, the Bylaws or any registration of the Trust with the
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable.
Each whole Share shall be entitled to one vote as to any matter on which it
is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. Notwithstanding any other provision of this
Declaration of Trust, on any matter submitted to a vote of Shareholders all
Shares of the Trust then entitled to vote shall be voted by individual series,
except when required by the 1940 Act, Shares shall be voted in the aggregate and
not by individual series; and except when the Trustees have determined that the
matter affects only the interests of one or more series, then only Shareholders
of such series shall be entitled to vote thereon. There shall be no cumulative
voting in the election of Trustees. Shares may be voted in
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person or by proxy. A proxy with respect to Shares held in the name of two or
more persons shall be valid if executed by any one of them unless at or prior to
exercise of the proxy the Trust receives a specific written notice to the
contrary from any one of them. A proxy purporting to be executed by or on behalf
of a Shareholder shall be deemed valid unless challenged at or prior to its
exercise and the burden of proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required by law, this Declaration of Trust or the Bylaws
to be taken by Shareholders.
Section 2. Meetings. No annual or regular meeting of Shareholders is
required. Special meetings of the Shareholders of the Trust or of any one or
more series of Shares may also be called by the Trustees from time to time for
the purpose of taking action upon any matter requiring the vote or authority of
the Shareholders as herein provided or upon any other matter deemed by the
Trustees to be necessary or desirable. Written notice of any meeting of
Shareholders shall be given or caused to be given by the Trustees by mailing
such notice at least seven days before such meeting, postage prepaid, stating
the time, place and purpose of the meeting, to each Shareholder at the
Shareholder's address as it appears on the records of the Trust. If the Trustees
shall fail to call or give notice of any meeting of Shareholders for a period of
30 days after written application by Shareholders holding at least 10% of the
Shares outstanding as of the date of the written application requesting a
meeting to be called for a purpose requiring action by the Shareholders as
provided herein or in the Bylaws, then Shareholders holding at least 10% of the
Shares outstanding as of the date of the written application may call and give
notice of such meeting, and thereupon the meeting shall be held in the manner
provided for herein in case of call thereof by the Trustees. If the meeting is a
meeting of the Shareholders of one or more series of Shares, but not a meeting
of all Shareholders of the Trust, then only the Shareholders of such one or more
series shall be entitled to notice of and to vote at the meeting.
Section 3. Quorum and Required Vote. Thirty percent (30%) of the Shares
entitled to vote shall be a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or of this
Declaration of Trust permits or requires that holders of any series shall vote
as a series, then thirty percent (30%) of the Shares of that series entitled to
vote shall be necessary to constitute a quorum for the transaction of business
by that series. Any lesser number shall be sufficient for adjournments. Any
adjourned session or sessions may be held, within a reasonable time after the
date set for the original meeting, without the necessity of further notice.
Except when a larger vote is required by any provision of this Declaration of
Trust, by law or the Bylaws, a majority of the Shares voted shall decide any
questions and a plurality shall elect a Trustee, provided that where any
provision of law or of this Declaration of Trust permits or requires that the
holders of any series shall vote as a series, then a majority of the Shares of
that series voted on the matter (or a plurality with respect to the election of
a Trustee) shall decide that matter insofar as that series is concerned.
Section 4. Action by Written Consent. Any action taken by Shareholders
may be taken without a meeting if a majority of Shareholders entitled to vote on
the matter (or such larger proportion thereof as shall be required by any
express provision of this Declaration of Trust or the Bylaws) consent to the
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action in writing and such written consents are filed with the records of the
meetings of Shareholders. Such consent shall be treated for all purposes as a
vote taken at a meeting of Shareholders.
Section 5. Additional Provisions. The Bylaws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Distributions, Redemptions and Repurchases
Section 1. Distributions. The Trustees may each year, or more
frequently if they so determine, distribute to the Shareholders of each series
such income and capital gains, accrued or realized, as the Trustees may
determine, after providing for actual and accrued expenses and liabilities
(including such reserves as the Trustees may establish) determined in accordance
with good accounting practices. The Trustees shall have full discretion to
determine which items shall be treated as income and which items as capital and
their determination shall be binding upon the Shareholders. Distributions of
each year's income of each series shall be distributed pro rata to Shareholders
in proportion to the number of Shares of each series held by each of them. At
any time and from time to time in their discretion, the Trustees may distribute
to the Shareholders of any one or more series all or any part of the principal
of such series. Such distributions shall be made in cash, property or Shares or
a combination thereof as determined by the Trustees. Any such distribution paid
in Shares will be paid at the net asset value thereof as determined in
accordance with the Bylaws.
Section 2. Redemptions and Repurchases. The Trust shall redeem such
Shares as are offered by any Shareholder for redemption, upon the presentation
of any certificate for the Shares to be redeemed, a proper instrument of
transfer and a request directed to the Trust or a person designated by the Trust
that the Trust redeem such Shares, or in accordance with such other procedures
for redemption as the Trustees may from time to time authorize; and the Trust
will pay therefor the net asset value thereof, as next determined in accordance
with the Bylaws. Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request is made. The
obligation to redeem set forth in this Section 2 is subject to the provision
that in the event that any time the New York Stock Exchange is closed for other
than customary weekends or holidays, or, if permitted by rules of the
Commission, during periods when trading on the Exchange is restricted or during
any emergency which makes it impractical for the Trust to dispose of its
investments or to determine fairly the value of its net assets, or during any
other period permitted by order of the Commission for the protection of
investors, such obligation may be suspended or postponed by the Trustees. The
Trust may also purchase or repurchase Shares at a price not exceeding the net
asset value of such Shares in effect when the purchase or repurchase or any
contract to purchase or repurchase is made.
Section 3. Redemptions at the Option of the Trust. The Trust shall
have the right at its option and at any time to redeem Shares of any Shareholder
at the net asset value thereof as determined in accordance with the Bylaws: (a)
if at such time such Shareholder owns fewer Shares than, or Shares having an
aggregate net asset value of less than, an amount determined from time to time
by the Trustees; or (b) to the extent that such Shareholder owns Shares of a
particular series of Shares equal to or in excess of a
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percentage of the Shares of that series determined from time to time by the
Trustees; or (c) to the extent that such Shareholder owns Shares of the Trust
representing a percentage equal to or in excess of such percentage of the
aggregate number of outstanding Shares of the Trust or the aggregate net asset
value of the Trust determined from time to time by the Trustees.
Section 4. Dividends, Distributions, Redemptions and Repurchases. No
dividend or distribution (including, without limitation, any distribution paid
upon termination of the Trust or of any series) with respect to, nor any
redemption or repurchase of, the Shares of any series shall be effected by the
Trust other than from the assets of such series.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Section 1. Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust; they may fix the amount of their
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or other
services and payment for the same by the Trust.
Section 2. Limitation of Liability. The Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee, manager or principal underwriter of the Trust, nor shall any
Trustee be responsible for the act or omission of any other Trustee, but nothing
herein contained shall protect any Trustee against any liability to which he or
she would otherwise be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of the
Trust or any series of Shares or the Trustees or any of them in connection with
the Trust shall be conclusively deemed to have been executed or done only in or
with respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
Indemnification
Section 1. Trustees, Officers, etc. The Trust shall indemnify each
of its Trustees and officers (including persons who serve at the Trust's request
as directors, officers or trustees of another organization in which the Trust
has any interest as a shareholder, creditor or otherwise) (hereinafter referred
to as a "Covered Person") against all liabilities and expenses, including but
not limited to amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees reasonably incurred by any Covered Person
in connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative or
legislative body, in which such Covered Person may be or may have been involved
as a party or otherwise or with which such Covered
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Person may be or may have been threatened, while in office or thereafter, by
reason of being or having been such a Covered Person except with respect to any
matter as to which such Covered Person shall have been finally adjudicated in a
decision on the merits in any such action, suit or other proceeding (a) not to
have acted in good faith in the reasonable belief that such Covered Person's
action was in the best interests of the Trust or (b) to be liable to the Trust
or its Shareholders by reason of wilful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of such Covered
Person's office.
Expenses, including counsel fees so incurred by any such Covered
Person (but excluding amounts paid in satisfaction of judgments, in compromise
or as fines or penalties), shall be paid from time to time by the Trust in
advance of the final disposition of any such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Covered Person to repay
amounts so paid to the Trust if it is ultimately determined that indemnification
of such expenses is not authorized under this Article, provided, however, that
either (a) such Covered Person shall have provided appropriate security for such
undertaking, (b) the Trust shall be insured against losses arising from any such
advance payments or (c) either a majority of the Trustees who are disinterested
persons and are not Interested Persons (provided that a majority of such
Trustees then in office act on the matter), or independent legal counsel in a
written opinion, shall have determined, based upon a review of readily available
facts (as opposed to a full trial type inquiry) that there is reason to believe
that such Covered Person will be found entitled to indemnification under this
Article.
Section 2. Compromise Payment. As to any matter disposed of (whether
by a compromise payment, pursuant to a consent decree or otherwise) without an
adjudication by a court, or by any other body before which the proceeding was
brought, that such Covered Person either (a) did not act in good faith in the
reasonable belief that his or her action was in the best interests of the Trust
or (b) is liable to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office, indemnification shall be provided
if (i) approved as in the best interests of the Trust, after notice that it
involves such indemnification, by at least a majority of the disinterested
Trustees acting on the matter (provided that a majority of the disinterested
Trustees then in office act on the matter) upon a determination, based upon a
review of readily available facts (as opposed to a full trial type inquiry) that
such Covered Person acted in good faith in the reasonable belief that his or her
action was in the best interests of the Trust and is not liable to the Trust or
its Shareholders by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his or her
office, or (ii) there has been obtained an opinion in writing of independent
legal counsel, based upon a review of readily available facts (as opposed to a
full trial type inquiry) to the effect that such Covered Person appears to have
acted in good faith in the reasonable belief that his or her action was in the
best interests of the Trust and that such indemnification would not protect such
Person against any liability to the Trust to which he or she would otherwise be
subject by reason of wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office. Any
approval pursuant to this Section shall not prevent the recovery from any
Covered Person of any amount paid to such Covered Person in accordance with this
Section as indemnification if such Covered Person is subsequently adjudicated by
a court of competent
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jurisdiction not to have acted in good faith in the reasonable belief that such
Covered Person's action was in the best interests of the Trust or to have been
liable to the Trust or its Shareholders by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office.
Section 3. Indemnification Not Exclusive. The right of
indemnification hereby provided shall not be exclusive of or affect any other
rights to which such Covered Person may be entitled. As used in this Article
VIII, the term "Covered Person" shall include such person's heirs, executors and
administrators and a "disinterested Trustee" is a Trustee who is not an
Interested Person of the Trust, (or who has been exempted from being an
Interested Person by any rule, regulation or order of the Commission) and
against whom none of such actions, suits or other proceedings or another action,
suit or other proceeding on the same or similar grounds is then or has been
pending. Nothing contained in this Article shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees or
officers, and other persons may be entitled by contract or otherwise under law,
nor the power of the Trust to purchase and maintain liability insurance on
behalf of any such person.
Section 4. Shareholders. 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 agreements,
acts or omissions or for some other reason, the Shareholder or former
Shareholder (or his or her heirs, executors, administrators or other legal
representatives or in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled to be held harmless from and
indemnified against all loss and expense arising from such liability, but only
out of the assets of the particular series of Shares of which he or she is or
was a Shareholder.
ARTICLE IX
Miscellaneous
Section 1. Trustees, Shareholders, etc. Not Personally Liable;
Notice. All persons extending credit to, contracting with or having any claim
against the Trust or a particular series of Shares shall look only to the assets
of the Trust or the assets of that particular series of Shares for payment under
such credit, contract or claim; and neither the Shareholders nor the Trustees,
nor any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor. Nothing in this Declaration of
Trust shall protect any Trustee against any liability to which such Trustee
would otherwise be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking
made or issued by the Trustees or by any officer or officers shall give notice
that this Declaration of Trust is on file with the Secretary of The Commonwealth
of Massachusetts and shall recite that the same was executed or made by or on
behalf of the Trust or by them as Trustee or Trustees or as officer or officers
and not individually and that the obligations of such instrument are not binding
upon any of them or the Shareholders individually but are binding only upon the
assets and property of the Trust, and may contain such further
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recital as he or she or they may deem appropriate, but the omission thereof
shall not operate to bind any Trustee or Trustees or officer or officers or
Shareholder or Shareholders individually.
Section 2. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall be liable for his or
her own wilful misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of the office of Trustee, and for nothing
else, and shall not be liable for errors of judgment or mistakes of fact or law.
The Trustees may take advice of counselor other experts with respect to the
meaning and operation of this Declaration of Trust, and shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice. The Trustees shall not be required to give any bond as
such, nor any surety if a bond is required.
Section 3. Liability of Third Persons Dealing with Trustees No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
Section 4. Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The Trust
may be terminated at any time by vote of Shareholders holding at least a
majority of the Shares of each series entitled to vote or by the Trustees by
written notice to the Shareholders. Any series of Shares may be terminated at
any time by vote of Shareholders holding at least a majority of the Shares of
such series entitled to vote or by the Trustees by written notice to the
Shareholders of such series.
Upon termination of the Trust or of any one or more series of Shares,
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated of the Trust or of the
particular series as may be determined by the Trustees, the Trust shall in
accordance with such procedures as the Trustees consider appropriate reduce the
remaining assets to distributable form in cash or shares or other 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.
Section 5. Filing of Copies, References, Headings. The original or a
copy of this Declaration of Trust 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 Declaration of Trust and of each amendment hereto shall be filed by the
Trust with the Secretary of The Commonwealth of Massachusetts and with the
Springfield 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 Declaration of
Trust or of any such amendments. In this Declaration of Trust and in any such
amendment, references to this Declaration of Trust, and all expressions like
"herein", "hereof" and "hereunder" shall be deemed to refer
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to this Declaration of Trust as amended or affected by any such amendments.
Headings are placed herein for convenience of reference only and shall not be
taken as a part hereof or control or affect the meaning, construction or effect
of this Declaration of Trust. This Declaration of Trust may be executed in any
number of counterparts each of which shall be deemed an original.
Section 6. Applicable Law. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth. 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.
Section 7. Amendments. This Declaration of Trust may be amended at
any time by an instrument in writing signed by a majority of the then Trustees
when authorized to do so by vote of Shareholders holding a majority of the
Shares of each series entitled to vote, except that an amendment which shall
affect the holders of one or more series of Shares but not the holders of all
outstanding series shall be authorized by vote of the Shareholders holding a
majority of the Shares entitled to vote of each series affected and no vote of
Shareholders of a series not affected shall be required. Amendments having the
purpose of changing the name of the Trust or of supplying any omission, curing
any ambiguity or curing, correcting or supplementing any defective or
inconsistent provision contained herein shall not require authorization by
Shareholder vote.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals in the City of Springfield, Massachusetts for themselves and their
assigns, as of the 14th day of May, 1993.
/s/ Xxxx X. Wendlardt
----------------------------------
Trustee
/s/ Xxxxxxx X. Xxxxxx
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Trustee
/s/ Xxxx X. Xxxxxx
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Trustee
/s/ Xxxxxxx X. XxXxxxxx
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Trustee
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THE COMMONWEALTH OF MASSACHUSETTS
Springfield, May 14, 1993
Hampden, ss.
Then personally appeared each of the above named Trustees, and acknowledged
the foregoing instrument to be their free act and deed, before me,
/s/ Xxxxx X. Xxxx
----------------------------
Notary/Public
My commission expires: 12/16/94
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