THE EQUITABLE FUNDS
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AGREEMENT AND DECLARATION OF TRUST
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AGREEMENT AND DECLARATION OF TRUST made at Boston,
Massachusetts this 26th day of March, 1987, by the Trustees
hereunder, and by the holders of shares of beneficial interest to
be issued hereunder as hereinafter provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business
of an investment company; and
WHEREAS, the Trustee have agreed to manage all property
coming into their hands as trustees of a Massachusetts voluntary
association with transferable shares in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities and other assets, which they may from
time to time acquire in any manner as Trustees hereunder IN TRUST
to manage and dispose of the same upon the following terms and
conditions for the pro rata benefit of the holders from time to
time of Shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Name
Section 1. This Trust shall be known as "The Equitable
Funds", and the Trustees shall conduct the business of the Trust
under that name or any other name as they may from time to time
determine.
Definitions
Section 2. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business
trust established by this Agreement and Declaration of Trust,
as amended from time to time;
(b) "Trustees" refers to the Trustees of the Trust
named herein or elected in accordance with Article IV;
(c) "Shares" means the equal proportionate transferable
units of interest into which the beneficial interest in the
Trust shall be divided from time to time or, if more than one
series or class of Shares is authorized by the Trustees, the
equal proportionate transferable units into which each series
or class of Shares shall be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act
of 1940 and the Rules and Regulations thereunder, all as
amended from time to time;
(f) The terms "Affiliated Person", "Assignment",
"Commission", "Interested Person", "Principal Underwriter"
and "Majority Shareholder Vote" (the 67% or 50% requirement
of the third sentence of Section 2(a)(42) of the 1940 Act,
whichever may be applicable) shall have the meanings given
them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement
and Declaration of Trust as amended or restated from time to
time; and
(h) "Bylaws" shall mean the Bylaws of the Trust as
amended from time to time.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed
investment primarily in securities, commodities and debt
instruments and to carry on such other business as the Trustees
may from time to time determine pursuant to their authority under
this Declaration of Trust.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The Shares of the Trust shall have a par value of
$0.00001 and 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 Shares of any series may be
issued in two or more classes, as the Trustees may, without
Shareholder approval, authorize. Unless the Trustees have
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authorized the issuance of Shares of a series in two or more
classes, each Share of a series shall represent an equal
proportionate interest in the assets and liabilities of the
series with each other Share of the same series, none having
priority or preference over another. If the Trustees have
authorized the issuance of Shares of a series in two or more
classes, then the classes may have such variations as to
dividend, redemption, and voting rights, net asset values,
expenses borne by the classes, and other matters as the Trustees
have authorized. The number of Shares authorized shall be
unlimited. The Trustees may from time to time divide or combine
the Shares of any series or of any class of a series into a
greater or lesser number without thereby changing the
proportionate beneficial interests in the series or class.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on the
books of the Trust or a transfer or similar agent. No
certificates certifying the ownership of Shares shall be issued
except as the Trustees may otherwise determine from time to time.
The Trustees may make such rules as they consider appropriate for
the issuance of Share certificates, the transfer of Shares and
similar matters. The record books of the Trust as kept by the
Trust or any transfer or similar agent, as the case may be, shall
be conclusive as to who are the Shareholders of each series 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
Section 3. The Trustees shall accept investments in the Trust
from such persons and on such terms and for such consideration,
which may consist of cash or tangible or intangible property or a
combination thereof, as they from time to time authorize.
All consideration received by the Trust or the issue or sale
of Shares of each series, together with all income, earnings,
profits, and proceeds thereof, including any proceeds derived
from the sale, exchange or liquidation thereof, and any funds or
payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably belong to the
series of Shares with respect to which the same were received by
the Trust for all purposes, subject only to the rights of
creditors, and shall be so handled upon the books of account of
the Trust and are herein referred to as "assets of" such series.
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No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other securities
issued by the Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property
giving only the rights provided in this instrument. Every
Shareholder by virtue of having become a Shareholder shall be
held to have expressly asserted 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 same nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Trust. Ownership of Shares
shall not entitle the Shareholder to any title in or to the whole
or any part of the Trust property or right to call for a
partition or division of the same or for an accounting, nor shall
the ownership of Shares constitute the Shareholders partners.
Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust shall have any power to bind personally any
Shareholder, nor except as specifically provided herein to call
upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at
any time personally agree to pay.
ARTICLE IV
The Trustees
Election
Section 1. There shall initially be one Trustee who shall be
Xxxxxxxx X. Xxxxx. The number of Trustees shall be as provided in
the Bylaws or as fixed from to time by the Trustees. The
Shareholders may elect Trustees at any meeting of Shareholders
called by the Trustees for that purpose. Each Trustee shall
serve during the continued lifetime of the Trust until he dies,
resigns or is removed, or, if sooner, until the next meeting of
Shareholders called for the purpose of electing Trustees and the
election and qualification of his successor. Any Trustee may
resign at any time by written instrument signed by him and
delivered to any officer of the Trust, to each other Trustee or
to a meeting of the Trustees. Such resignation shall be effective
upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement
with the Trust, no Trustee resigning and no Trustee removed shall
have any right to any compensation for any period following his
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resignation or removal, or any right to damages on account of
such removal.
Effect of Death, Resignation, etc. of a Trustee
Section 2. The death, declination, resignation, retirement,
removal or incapacity of the Trustees, or any one of them, shall
not operate to annul the Trust or to revoke any existing agency
created pursuant to the terms of this Declaration of Trust.
Powers
Section 3. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient
to carry out that responsibility. Without limiting the
foregoing, the Trustees may adopt Bylaws not inconsistent with
this Declaration of Trust providing for the conduct of the
business of the Trust and may amend and repeal them to the extent
that such Bylaws do not reserve that right to the Shareholders;
they may enlarge or reduce their number, may fill vacancies in
their number, including vacancies caused by enlargement of their
number, and may remove Trustees with or without cause; they may
elect and remove, with or without cause, such officers and
appoint and terminate such agents as they consider appropriate;
they may appoint from their own number, and terminate, any one or
more committees consisting of two or more Trustees, including an
executive committee which may, when the Trustees are not in
session, exercise some or all of the power and authority of the
Trustees as the Trustees may determine; they may employ one or
more custodians of the assets of the Trust and may authorize such
custodians to employ subcustodians and to deposit all or any part
of such assets in a system or systems for the central handling of
securities, retain a transfer agent or a Shareholder servicing
agent, or both, provide for the distribution of Shares by the
Trust, through one or more principal underwriters or otherwise,
set record dates for the determination of Shareholders with
respect to various matters, and in general delegate such
authority as they consider desirable to any officer of the Trust,
to any committee of the Trustees and to any agent or employee of
the Trust or to any such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash
uninvested;
(b) To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the
assets of the Trust;
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(c) To act as a distributor of shares and as
underwriter of, or broker or dealer in, securities or other
property;
(d) 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;
(e) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of
securities;
(f) To hold any security or property in a form not
indicating any trust, whether in bearer, unregistered or
other negotiable form, or in the name of the Trustees or of
the Trust or in the name of a custodian, subcustodian or
other depository or a nominee or nominees or otherwise;
(g) To allocate assets, liabilities and expense of the
Trust to a particular series or class of Shares or to
apportion the same among two or more series or classes of
Shares, provided that any liabilities or expenses incurred by
a particular series or class of Shares shall be payable
solely out of the assets of that series or class.
(h) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
issuer, any security of which is or was held in the Trust; to
consent to any contract, lease, mortgage, purchase or sale of
property by such corporation or issuer, and to pay calls or
subscriptions with respect to any security held in the Trust;
(i) To join with other security holders in acting
through a committee depositary, voting trustee or otherwise,
and in that connection to deposit any security with, or
transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority
with relation to any security (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree
to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(j) To compromise, arbitrate or otherwise adjust claims
in favor of or against the Trust or any matter in
controversy, including but not limited to claims for taxes;
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(k) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(l) To borrow funds;
(m) To endorse or guarantee the payment of any notes or
other obligations of any person; to make contracts of
guaranty or suretyship, or otherwise assume liability for
payment thereof; and to mortgage and pledge the Trust
property or any part thereof to secure any of or all such
obligations;
(n) To purchase and pay for entirely out of Trust
property such insurance as they may deem necessary or
appropriate for the conduct of the business, including
without limitation, insurance policies insuring the 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;
(o) To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and
carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means
of providing such retirement and other benefits, for any or
all of the Trustees, officers, employees and agents of the
Trust; and
(p) To engage in any other lawful act or activity in
which corporations organized under the Massachusetts Business
Corporation Law may engage.
The Trustees shall not in any way be bound or limited by any
present or future law or custom in regard to investments by
trustees. Except as otherwise provided herein or from time to
time in the Bylaws, any action to be taken by the Trustees may be
taken by a majority of the Trustee present at a meeting of
Trustees (a quorum being present), within or without
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Massachusetts, including any meeting held by means of a
conference telephone or other communications equipment by means
of which all persons participating in the meeting can hear each
other at the same time and participation by such means shall
constitute presence in person at a meeting, or by written
consents of a majority of the Trustees then in office.
Payment of Expenses by Trust
Section 4. The Trustees are authorized to pay or to cause to
be paid out of the 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, in connection with the
management thereof, or in connection with the financing of the
sale of Shares, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of
the Trust's officers, employees, any investment adviser, manager,
or sub-adviser, 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 or class of Shares as determined by the
Trustees, shall be payable solely out of the assets of that
series or class.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of each series of
Shares and of the Trust shall at all times be considered as
vested in the Trustees.
Advisory, Management and Distribution
Section 6. The Trustees may, at any time and from time to
time, contract or 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 provide for one or more
Sub-advisers who shall perform all or part of the obligations of
the Manager under such contract and may contain such other terms
interpretive of or in addition to said requirements and
restrictions as the Trustees may determine, including, without
limitation, authority to determine from time to time what
investments shall be purchased, held, sold or exchanged and what
portion, if any, of the assets of the Trust shall be held
uninvested and to make changes in the Trust's investments. The
Trustees may also, at any time and from time to time, contract
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with the Manager or any other corporation, trust, association or
other organization, appointing it exclusive or nonexclusive
distributor or principal underwriter for the Shares, every such
contract to comply with such requirements and restrictions as may
be set forth in the Bylaws; and any such contract may contain
such other terms interpretive of or in addition to said
requirements and restrictions as the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, manager, adviser, principal underwriter or
distributor or agent of or for any corporation, trust,
association, or other organization, or of or for any parent
or affiliate of any organization, with which an advisory or
management contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or
other agency contract may have been or may hereafter be made,
or that any such organization, or any parent or affiliate
thereof, is a Shareholder or has an interest in the Trust, or
that
(ii) any corporation, trust, association or other
organization with which an advisory or management contract or
principal underwriter's or distributor's contract, or
transfer, shareholder servicing or other agency contract may
have been or may hereafter be made also has an advisory or
management contract, or 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
Shareholders shall have such power to vote as is provided for
in, and may hold meetings and take actions pursuant to the
provisions of the Bylaws.
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ARTICLE VI
Distributions, Redemptions and Repurchases
Distributions
Section 1. The Trustees may each year, or more frequently if
they so determine, distribute to the Shareholders of each series
or class of Shares 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 or class of Shares shall be distributed pro
rata to Shareholders in proportion to the number of Shares of
each series or class held by each of them. Such distribution
shall be made in cash 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.
Redemptions and Repurchases
Section 2. The Trust shall purchase such Shares as are
offered by any Shareholder for redemption, upon the presentation
of any certificate for the Shares to be purchased, a proper
instrument of transfer and a request directed to the Trust or a
person designated by the Trust that the Trust purchase such
Shares, or in accordance with such other procedures for
redemption as the Trustees may from time to time authorize; and
the Trust will pay therefor the net asset value thereof, as next
determined in accordance with the Bylaws, less such redemption
charge or fee as the Trustees may determine from time to time.
Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request
is made. The obligation set forth in this Section 2 is subject to
the provision that in the event that any time the New York Stock
Exchange is closed for other than customary weekends or holidays,
or, if permitted by rules of the 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.
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Redemptions at the Option of the Trust
Section 3. The Trust shall have the right at its option and
at any time to redeem Shares of any Shareholder at the net asset
value thereof as determined in accordance with the Bylaws:
(i) if at such time such Shareholder owns fewer Shares than, or
Shares having an aggregate net asset value of less than, an
amount determined from time to time by the Trustees; or (ii) to
the extent that such Shareholder owns Shares of a particular
series or class of Shares equal to or in excess of a percentage
of the outstanding Shares of that series or class determined from
time to time by the Trustees; or (iii) to the extent that such
Shareholder owns Shares of the Trust representing a percentage
equal to or in excess of such percentage of the aggregate number
of outstanding Shares of the Trust or the aggregate net asset
value of the Trust determined from time to time by the Trustees.
Dividends, Distribution, Redemptions and Repurchases
Section 4. 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
Compensation
Section 1. The Trustees an 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, underwriting, brokerage, or
investment dealer or other services and payment for the same by
the Trust.
Limitation of Liability
Section 2. The Trustees shall not be responsible or liable in
any event for any neglect or wrongdoing of any officer, agent,
employee, manager or principal underwriter of the Trust, nor
shall any Trustee be responsible for the act or omission of any
other Trustee, but nothing herein contained shall protect any
Trustee against any liability to which he or she would otherwise
be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved-in the
conduct of his or her office.
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Every note, bond, contract, instrument, certificate, Share or
undertaking and every other act or thing whatsoever executed or
done by or on behalf of the Trust or the Trustees or any of them
in connection with the Trust shall be conclusively deemed to have
been executed or done only in or with respect to their or his or
her capacity as Trustees or Trustee, and such Trustees or Trustee
shall not be personally liable thereon.
ARTICLE VIII
Indemnification
Trustees, Officers, etc.
Section 1. The Trust shall indemnify each of its Trustees and
officers (including persons who serve at the Trust's request as
directors, officers or trustees of another organization in which
the Trust has any interest as a shareholder, creditor or
otherwise) (hereinafter referred to as a "Covered Person" against
all liabilities and expenses, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees reasonably incurred by any
Covered Person in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal,
before any court or administrative or legislative body, in which
such Covered Person may be or may have been involved as a party
or otherwise or with which such Covered Person may be or may have
been threatened, while in office or thereafter, by reason of
being or having been such a Covered Person except with respect to
any matter as to which such Covered Person shall have been
finally adjudicated in any such action, suit or other proceeding
(a) not to have acted in good faith in the reasonable belief that
such Covered Person's action was in the best 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 disinterested Trustees acting on the matter
(provided that a majority of the disinterested Trustees then in
office act on the matter), or independent legal counsel in a
written opinion, shall have determined, based upon a review of
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readily available facts (as opposed to a full trial type inquiry)
that there is reason to believe that such Covered Person will be
found entitled to indemnification under this Article.
Compromise Payment
Section 2. As to any matter disposed of (whether by a
compromise payment, pursuant to a consent decree or otherwise)
without an adjudication in a decision on the merits 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 action was in the best interests
of the Trust or (b) is 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 his
or her office, indemnification shall be provided if (a) approved
as in the best interest 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 action was in the best interests of the Trust and is not
liable to the Trust or its Shareholders by reasons of wilful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his or her office, or
(b) there has been obtained an opinion in writing of independent
legal counsel, based upon a review of readily available facts (as
opposed to a full trial type inquiry) to the effect that such
Covered Person appears to have acted in good faith in the
reasonable belief that his 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 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 office. Any approval pursuant to this Section
shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with this
Section as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have
acted in good faith in the reasonable belief that such Covered
Person's action was in the best interests of the Trust or to have
been liable to the Trust or its Shareholders by reason of wilful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of such Covered Person's
office.
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Indemnification Not Exclusive
Section 3. The right of indemnification hereby provided shall
not be exclusive of or affect any other rights to which such
Covered Person may be entitled. As used in this Article VIII,
the term "Covered Person" shall include such person's heirs,
executors and administrators and a "disinterested Trustee" is a
Trustee who is not an interested person of the Trust as defined
in Section 2(a)(l9) of the Investment Company Act of 1940, as
amended, (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 action, suits or other proceedings or
another action, suit or other proceeding on the same or similar
grounds is then or has been pending. Nothing contained in this
Article shall affect any rights to indemnification to which
personnel of the Trust, other than Trustees or officers, and
other persons may be entitled by contract or otherwise under law,
nor the power of the Trust to purchase and maintain liability
insurance on behalf of any such person.
Shareholders
Section 4. In case any Shareholder or former Shareholder
shall be held to be personally liable solely by reason of his or
her being or having been a Shareholder and not because of his or
her acts or omission 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
Trustees, Shareholders, etc. Not Personally Liable; Notice
Section 1. All persons extending credit to, contracting with
or having any claim against the Trust or a particular series of
Shares shall look only to the assets of the Trust or the assets
of that particular series of Shares for payment under such
credit, contract or claim; and neither the Shareholders nor the
Trustees, nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable
therefor. Nothing in this Declaration of Trust shall protect any
Trustee against any liability to which such Trustee would
otherwise be subject by reason of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in
the conduct of the office of Trustee.
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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 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, and may contain such further recital as he or she or
they may deem appropriate, but the omission thereof shall not
operate to bind any Trustee or Trustees or officer or officers or
Shareholder or Shareholders individually.
Trustee's Good Faith Action, Expert Advice, No Bond or Surety
Section 2. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested.
A Trustee shall be liable for his or her own 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 counsel or other
experts with respect to the meaning and operation of this
Declaration of Trust, and shall be under no liability for any act
or omission in accordance with such advice or for failing to
follow such advice. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
Liability of Third Persons Dealing with Trustees
Section 3. No person dealing with the Trustees shall be bound
to make any inquiry concerning the validity of any transaction
made or to be made by the Trustees or to see to the application
of any payments made or property transferred to the Trust or upon
its order.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust
shall continue without limitation of time. The Trust may be
terminated at any time by the 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
Share after paying or otherwise providing for all charges, taxes,
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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
aggregate net asset value of Shares of such series or class of
Shares held by the several Shareholders of such series or class
of Shares on the date of termination.
Filing of Copies, References, Headings
Section 5. The original or a copy of this instrument and of
each amendment hereto shall be kept at office of the Trust where
it may be inspected by any Shareholder. A copy of this instrument
and of each amendment hereto shall be filed by the Trust with the
Secretary of The Commonwealth of Massachusetts and with the
Boston City Clerk, as well as any other governmental office where
such filing may from time to time be required. Anyone dealing
with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such amendments have been made and
as to any matters in connection with the Trust hereunder, and,
with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this
instrument or of any such amendments. In this instrument and in
any such amendment, references to this instrument, and all
expressions like "herein", "hereof" and "hereunder" shall be
deemed to refer to this instrument as amended or affected by any
such amendments. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control
or affect the meaning, construction or effect of this instrument.
This instrument may be executed in any number of counterparts
each of which shall be deemed an original.
Applicable Law
Section 6. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to
be governed by and construed and administered according to the
laws of said Commonwealth. The Trust shall be of the type
commonly called a Massachusetts business trust, and without
limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a trust.
Amendments
Section 7. This Declaration of Trust may be amended at any
time by an instrument in writing signed by a majority of the then
Trustees when authorized to do so by vote of Shareholders holding
a majority of the Shares of each series entitled to vote, except
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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. Any amendment which shall affect the holders of Shares
of one or more classes of a series but not the holders of all
Shares of a series shall be authorized by vote of the
Shareholders holding a majority of the Shares of such classes
affected by the amendment voting together as a single class, and
no vote of Shareholders of the classes not affected shall be
required. Amendments having the purpose of changing the name of
the Trust, of establishing, changing, or eliminating the par
value of the shares 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 has hereunto set his hand
and seal in the City of Boston for himself and his assigns, as of
the 26th day of March, 1987.
/s/ Xxxxxxxx X. Xxxxx
__________________________
Xxxxxxxx X. Xxxxx
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. March 26, 1987
Then personally appeared the above-named Xxxxxxxx X. Xxxxx
and acknowledged the foregoing instrument to be his free act and
deed, before me.
/s/
__________________________
Notary Public
My commission expires:
[Notary's Seal]
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00250184.AX8
