Exhibit 77Q(1)(a)(ii)
XXXXXX XXXXXX FUNDS II
FIRST AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
THIS FIRST AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
made at Boston, Massachusetts this 21st day of July, 2005 (the Effective
Date) by the Trustees hereunder and the holders of shares of beneficial
interest issued hereunder and to be issued hereunder as hereinafter
provided:
WITNESSETH that
WHEREAS, the Trustees adopted the Agreement and Declaration of
Trust on February 20, 1991 (the Original Declaration of Trust) and
amendments thereto prior to the date hereof;
WHEREAS, the required number of shares approved this First Amended
and Restated Agreement and Declaration of Trust at a special meeting of
shareholders duly called for that purpose on July 21, 2005;
WHEREAS, this Trust has been formed to carry on the business of
an investment company; and
WHEREAS, the Trustees have agreed to manage all property coming
into their hands as trustees of a Massachusetts voluntary association
with transferable shares in accordance with the provisions hereinafter
set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold
all cash, securities and other assets, which they may from time to
time acquire in any manner as Trustee hereunder, IN TRUST to manage
and dispose of the same upon the following terms and conditions for
the benefit of the holders from time to time of shares in this Trust
as hereinafter set forth.
ARTICLE I
Name and Definitions
Section 1. This Trust shall be known as Xxxxxx Xxxxxx Funds
II 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) Trust refers to the Massachusetts business trust
established by this Third Amended and Restated Declaration of Trust,
as amended or restated from time to time;
(b) Trustees refers to the persons signatory hereto,
so long as they continue in office in accordance with the terms of
this Declaration of Trust, and all other persons who may from time
to time be duly elected or appointed in accordance with Article IV
hereof;
(c) Shares means the equal proportionate units of interest
into which the beneficial interest in the Trust or in the Trust property
belonging to any Series of the Trust or in any class of Shares of the
Trust (as the context may require) shall be divided from time to time;
(d) Shareholder means a record owner of Shares;
(e) 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 Commission and principal underwriter shall
have the meanings given them in the 1940 Act;
(g) Declaration of Trust or Declaration shall mean this
Agreement and Declaration of Trust, as amended or restated from time to
time;
(h) By-Laws shall mean the By-Laws of the Trust, as
amended from time to time;
(i) Series Company refers to the form of registered
open-end investment company described in Section 18(f)(2) of the 1940
Act or in any successor statutory provision;
(j) Series refers to Series of Shares established and
designated under or in accordance with the provisions of Article III;
(k) Multi-Class Series refers to Series of Shares
established and designated as Multi-Class Series under or in accordance
with the provisions of Article III, Section 6; and
(l) The terms class and class of Shares refer to each
class of Shares into which the Shares of any Multi-Class Series may
from time to time be divided in accordance with the provisions of
Article III.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to engage in the business of a
management investment company.
ARTICLE III
Shares
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 assets specifically
allocated to that Series within the meaning of the 1940 Act and shall
represent a separate investment portfolio of the Trust. The
beneficial interest in each Series shall at all times be divided into
an unlimited number of Shares, without par value, each of which shall,
except as provided in the following sentence, represent an equal
proportionate interest in the Series with each other Share of the
same Series, none having priority or preference over another. The
Trustees may, without Shareholder approval, divide the Shares of any
Series into two or more classes, Shares of each such class having
such preferences and special or relative rights and privileges
(including conversion rights, if any) as the Trustees may determine
or as shall be set forth in the By-Laws. The Trustees may from time
to time divide or combine the Shares of any Series or Class into a
greater or lesser number without thereby changing the proportionate
beneficial interest in the Series or Class.
Section 2. Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust or a transfer or similar
agent for the Trust, which books shall be maintained separately for
the Shares of each Series and class. 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 transfer of Shares of each
Series and class and similar matters. The record books of the Trust as
kept by the Trust or any transfer or similar agent, as the case may be,
shall be conclusive as to who are the Shareholders of each Series and
class and as to the number of Shares of each Series and class held from
time to time by each.
Section 3. Investments in the Trust. The Trustees shall accept
investments in the Trust from such persons and on such terms and for
such consideration as they from time to time authorize.
Section 4. 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 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 entitles such representative only
to the rights of said deceased Shareholder 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.
Section 5. Power of Trustees to Change Provisions Relating to
Shares. Notwithstanding any other provisions of this Declaration of
Trust and without limiting the power of the Trustees to amend the
Declaration of Trust as provided elsewhere herein, the Trustees shall
have the power to amend this Declaration of Trust, at any time and from
time to time, in such manner as the Trustees may determine in their
sole discretion, without the need for Shareholder action, so as to
add to, delete, replace or otherwise modify any provisions relating
to the Shares contained in this Declaration of Trust for the purpose
of responding to or complying with any regulations, orders, rulings or
interpretations of any governmental agency or any laws, now or hereafter
applicable to the Trust; provided that before adopting any such
amendment without Shareholder approval the Trustees shall determine
that it is consistent with the fair and equitable treatment of all
Shareholders. The establishment and designation of any Series of
Shares in addition to the Series established and designated prior to
the Effective Date shall be effective upon the adoption by vote or
written consent of a majority of the then Trustees of a resolution
setting forth such establishment and designation and the relative
rights and preferences of such Series, or as otherwise provided in
such resolution. The establishment and designation of any class
of Shares shall be effective upon the adoption by vote or written
consent of a majority of the then Trustees of a resolution setting
forth such establishment and designation and the relative rights
and preferences of such class and such eligibility requirements for
investment therein as the Trustees may determine, or as otherwise
rovided in such resolution.
Without limiting the generality of the foregoing, the Trustees
may, without the approval of Shareholders, for the above-stated
purposes, amend the Declaration of Trust to:
(a) create one or more Series or classes of Shares (in
addition to any Series or classes already existing or otherwise) with
such rights and preferences and such eligibility requirements for
investment therein as the Trustees shall determine and reclassify any
or all outstanding Shares as shares of particular Series or classes in
accordance with such eligibility requirements;
(b) amend any of the provisions set forth in paragraphs (a)
through (j) of Section 6 of this Article III;
(c) combine one or more Series or classes of Shares into a
single Series or class on such terms and conditions as the Trustees
shall determine or consolidate, merge or transfer assets of the Trust
or a Series as set forth in Article VIII, Section 5;
(d) change or eliminate any eligibility requirements for
investment in Shares of any Series or class, including without
limitation the power to provide for the issue of Shares of any Series
or class in connection with any merger or consolidation of the Trust
with another trust or company or any acquisition by the Trust of part
or all of the assets of another trust or company;
(e) change the designation of any Series or class of Shares;
(f) change the method of allocating dividends among the
various Series and classes of Shares;
(g) allocate any specific assets or liabilities of the Trust
or any specific items of income or expense of the Trust to one or more
Series or classes of Shares; and
(h) specifically allocate assets to any or all Series of
Shares or create one or more additional Series of Shares which are
preferred over all other Series of Shares in respect of assets
specifically allocated thereto or any dividends paid by the Trust with
respect to any net income, however determined, earned from the
investment and reinvestment of any assets so allocated or otherwise and
provide for any special voting or other rights with respect to such
Series or any classes of Shares thereof.
Section 6. Establishment and Designation of Series and Classes.
Shares of each Series established through and including the
Effective Date shall have the following rights and preferences relative
to Shares of each other Series, and Shares of each class of a
Multi-Class Series shall have such rights and preferences relative to
other classes of the same Series as are set forth below, together with
such other rights and preferences relative to such other classes as are
set forth in any resolution of the Trustees establishing and designating
such class of Shares:
(a) Assets belonging to Series. Subject to the provisions
of paragraph (c) of this Section 6:
All consideration received by the Trust for the issue or sale of
Shares of a particular Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits
and proceeds thereof from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment
of such proceeds in whatever form the same may be, shall irrevocably
belong to that Series for all purposes, subject only to the rights of
creditors of that Series, and shall be so recorded upon the books of
account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds, in whatever form the same may be,
are herein referred to as assets belonging to that Series. In the
event that there are any assets, income, earnings, profits and proceeds
thereof, funds or payments which are not readily identifiable as
belonging to any particular Series (collectively General Assets),
the Trustees shall allocate such General Assets to, between or among
any one or more of the Series established and designated from time to
time in such manner and on such basis as they, in their sole discretion,
deem fair and equitable, and any General Asset so allocated to a
particular Series shall belong to that Series. Each such allocation by
the Trustees shall be conclusive and binding upon the Shareholders of
all Series for all purposes.
(b) Liabilities Belonging to Series. Subject to the
provisions of paragraph (c) of this Section 6:
The assets belonging to each particular Series shall be charged
solely with the liabilities of the Trust in respect to that Series, the
expenses, costs, charges and reserves attributable to that Series, and
any general liabilities of the Trust which are not readily identifiable
as belonging to any particular Series but which are allocated and
charged by the Trustees to and among any one or more of the Series
established and designated from time to time in a manner and on such
basis as the Trustees in their sole discretion deem fair and equitable.
The liabilities, expenses, costs, charges and reserves so charged to a
Series are herein referred to as liabilities belonging to that Series.
Each allocation of liabilities, expenses, costs, charges and reserves
by the Trustees shall be conclusive and binding upon the Shareholders
of all Series for all purposes.
(c) Apportionment of Assets etc. in Case of Multi-Class
Series. In the case of any Multi-Class Series, to the extent necessary
or appropriate to give effect to the relative rights and preferences of
any classes of Shares of such Series, (i) any assets, income, earnings,
profits, proceeds, liabilities, expenses, charges, costs and reserves
belonging or attributable to that Series may be allocated or attributed
to a particular class of Shares of that Series or apportioned among
two or more classes of Shares of that Series; and (ii) Shares of any
class of such Series may have priority or preference over Shares of
other classes of such Series with respect to dividends or distributions
upon termination of the Trust or of such Series or class or otherwise,
provided that no Share shall have any priority or preference over any
other Shares of the same class and that all dividends and distributions
to Shareholders of a particular class shall be made ratably among all
Shareholders of such class according to the number of Shares of such
class held of record by such Shareholders on the record date for any
dividend or distribution or on the date of termination, as the case
may be.
(d) Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provisions of this Declaration, including,
without limitation, Article VI, no dividend or distribution (including,
without limitation, any distribution paid upon termination of the
Trust or of any Series or class) with respect to, nor any redemption
or repurchase of, the Shares of any Series or class shall be effected
by the Trust other than from the assets belonging to such Series or
attributable to such class, nor shall any Shareholder of any
particular Series or class otherwise have any right or claim against
the assets belonging to any other Series or attributable to any other
class except to the extent that such Shareholder has such a right or
claim hereunder as a Shareholder of such other Series or class.
(e) Voting. Notwithstanding any of the other provisions
of this Declaration, including, without limitation, Section 1 of
Article V, and except to the extent required by applicable law, the
Shareholders of any particular Series or class shall not be entitled
to vote on any matters as to which such Series or class is not
affected. On any matter submitted to a vote of Shareholders, all
Shares of the Trust then entitled to vote shall, except as otherwise
provided in the By-Laws, be voted in the aggregate as a single class
without regard to Series or class of Shares, except that (1) when
required by the 1940 Act or when the Trustees shall have determined
that the matter affects one or more Series or classes of Shares
materially differently, Shares shall be voted by individual Series
or class and (2) when the matter affects only the interests of one
or more Series or classes, only Shareholders of such Series or
classes shall be entitled to vote thereon. There shall be no
cumulative voting in the election of Trustees.
(f) Equality. Except to the extent necessary or
appropriate to give effect to the relative rights and preferences
of any classes of Shares of a Multi-Class Series, all the Shares
of each particular Series shall represent an equal proportionate
interest in the assets belonging to that Series (subject to the
liabilities belonging to that Series), and each Share of any
particular Series shall be equal to each other Share of that Series.
All the Shares of each particular class of Shares within a Multi-Class
Series shall represent an equal proportionate interest in the assets
belonging to such Series that are attributable to such class (subject
to the liabilities attributable to such class), and each Share of any
particular class within a Multi-Class Series shall be equal to each
other Share of such class.
(g) Fractions. Any fractional Share of a Series or class
shall carry proportionately all the rights and obligations of a whole
Share of that Series or class, including rights with respect to voting,
receipt of dividends and distributions, redemption of Shares and
termination of the Trust.
(h) Exchange Privilege. The Trustees shall have the
authority to provide that the holders of Shares of any Series or
class shall have the right to exchange said Shares for Shares of one
or more other Series or classes of Shares in accordance with such
requirements and procedures as may be established by the Trustees.
(i) Combination of Series or Classes. Without limiting
the authority of the Trustees set forth in Article VIII, Section 5,
the Trustees shall have the authority, without the approval of the
Shareholders of any Series or class unless otherwise required by
applicable law, to combine the assets and liabilities belonging to
any two or more Series or attributable to any class into assets and
liabilities belonging to a single Series or attributable to a single
class.
(j) Elimination of Series or Class. At any time that
there are no Shares outstanding of any particular Series previously
established and designated, the Trustees may abolish and rescind the
establishment and designation of that Series by vote or written
consent of a majority of the then Trustees. At any time that there
are no Shares outstanding of any particular class previously
established and designated of a Multi-Class Series, the Trustees may
abolish that class and rescind the establishment and designation
thereof by vote or written consent of a majority of the then Trustees.
Section 7. Indemnification of 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 of the Trust or of a particular Series or class and not
because of his or her acts or omissions or for some other reason,
the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or, in the case of a
corporation or other entity, its corporate or other general successor)
shall be entitled out of the assets of the Series (or attributable to
the class) of which he or she is a Shareholder or former Shareholder
to be held harmless from and indemnified against all loss and expense
arising from such liability.
Section 8. No Preemptive Rights. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or
other securities issued by the Trust.
Section 9. Derivative Claims. No Shareholder shall have the
right to bring or maintain any court action, proceeding or claim on
behalf of the Trust or any Series without first making demand on the
Trustees requesting the Trustees to bring or maintain such action,
proceeding or claim. Such demand shall be mailed to the Secretary
of the Trust at the Trust's principal office and shall set forth in
reasonable detail the nature of the proposed court action, proceeding
or claim and the essential facts relied upon by the Shareholder to
support the allegations made in the demand. The Trustees shall
consider such demand within 45 days of its receipt by the Trust.
In their sole discretion, the Trustees may submit the matter to a
vote of Shareholders of the Trust or Series, as appropriate. Any
decision by the Trustees to bring, maintain or settle (or not to
bring, maintain or settle) such court action, proceeding or claim, or
to submit the matter to a vote of Shareholders, shall be made by the
Trustees in their business judgment and shall be binding upon the
Shareholders.
ARTICLE IV
The Trustees
Section 1. Election and Tenure. The Trustees may fix the
number of Trustees, fill vacancies in the Trustees, including vacancies
arising from an increase in the number of Trustees, or remove Trustees
with or without cause. Each Trustee shall serve during the continued
lifetime of the Trust until he or she dies, resigns or is removed, or,
if sooner, until the next meeting of Shareholders called for the
purpose of electing Trustees and until the election and qualification
of his or her successor. Any Trustee may resign at any time by
written instrument signed by him or her and delivered to any officer
of the Trust 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 or her
resignation or removal, or any right to damages on account of such
removal. The Shareholders may fix the number of Trustees and elect
Trustees at any meeting of Shareholders called by the Trustees for
that purpose and to the extent required by applicable law, including
paragraphs (a) and (b) of Section 16 of the 1940 Act.
Section 2. Effect of Death, Resignation, etc. of a Trustee.
The death, declination, resignation, retirement, removal or incapacity
of the Trustees, or any 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 3. Powers. 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 including the power to engage in
securities transactions of all kinds on behalf of the Trust. Without
limiting the foregoing, the Trustees may adopt By-Laws not inconsistent
with this Declaration of Trust providing for the regulation and
management of the affairs of the Trust and may amend and repeal
them to the extent that such By-Laws do not reserve that right to the
Shareholders; they may elect and remove such officers and appoint and
terminate such agents as they consider appropriate; they may appoint
from their own number and terminate one or more committees consisting
of two or more Trustees which may exercise the powers and authority
of the Trustees to the extent that the Trustees determine; they may
employ one or more custodians of the assets of the Trust and may
authorize such custodians to employ sub-custodians and to deposit all
or any part of such assets in a system or systems for the central
handling of securities or with a Federal Reserve Bank, 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.
In addition to the foregoing, the trustees of the Trust who are not
Interested persons of the Trust as defined in Section 2(a)(19) of the
Investment Company Act of 1940 shall have the power to hire employees
and other agents and experts necessary to carry out their duties, as
determined by the trustees of the Trust who are not Interested persons
of the Trust in their discretion.
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,
lease, write options with respect to or otherwise deal in any property
rights relating to 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 its own name or in the name of a custodian or sub-custodian or
a nominee or nominees or otherwise;
(f) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer
of any security which is 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;
(g) 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;
(h) 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;
(i) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(j) To borrow funds or other property;
(k) To endorse or guarantee the payment of any notes or other
obligations of any person; and to make contracts of guaranty or
suretyship, or otherwise assume liability for payment of such notes
or other obligations;
(l) 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 of the Trust, 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, 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 Trustee, officer, employee,
agent, investment adviser, 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 liability; and
(m) To pay pensions as deemed appropriate by the Trustees and
to adopt, establish and carry out pension, profit-sharing, share bonus,
share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of
life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust.
The Trustees shall not in any way be bound or limited by any
present or future law or custom in regard to investments by Trustees.
The Trustees shall not be required to obtain any court order to deal
with any assets of the Trust or take any other action hereunder.
Section 4. Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of
the Trust, or partly out of principal and partly out of income, as they
deem fair, all expenses, fees, charges, taxes and liabilities incurred
or arising in connection with the Trust, or in connection with the
management thereof, including but not limited to, the Trustees'
compensation and such expenses and charges for the services of the
Trust's officers, employees, administrators, investment advisers or
managers, principal underwriter, auditor, counsel, custodian, transfer
agent, shareholder servicing agent, and such other agents or
independent contractors, and such other expenses and charges, as the
Trustees may deem necessary or proper to incur.
Section 5. Payment of Expenses by Shareholders. The Trustees
shall have the power, as frequently as they may determine, to cause
each Shareholder, or each Shareholder of any particular Series or
class, to pay directly, in advance or arrears, for charges of the
Trust's custodian or transfer, shareholder servicing or similar
agent, an amount fixed from time to time by the Trustees, by setting
off such charges due from such Shareholder from declared but unpaid
dividends owed such Shareholder and/or by reducing the number of Shares
in the account of such Shareholder by that number of full and/or
fractional Shares which represents the outstanding amount of such
charges due from such Shareholder.
Section 6. Ownership of Assets of the Trust. Title to all
of the assets of the Trust shall at all times be considered as vested
in the Trustees.
Section 7. Advisory, Management and Distribution Contracts.
Subject to such requirements and restrictions as may be set forth in
the By-Laws, the Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory and/or management
services for the Trust or for any Series or class with any corporation,
trust, association or other organization (a Manager); and any such
contract may contain such other terms as the Trustees may determine,
including without limitation, authority for a Manager to determine
from time to time without prior consultation with the Trustees what
investments shall be purchased, held, sold or exchanged and what
portion, if any, of the assets of the Trust shall be held uninvested
and to make changes in the Trust's investments. The Trustees may also,
at any time and from time to time, contract with a 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 By-Laws; and any such contract
may contain such other terms 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, distributor or affiliate 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, custodian
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, custodian
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 (i) for the election of Trustees as provided in Article IV,
Section 1, (ii) with respect to any amendment of this Declaration of
Trust to the extent and as provided in Article VIII, Section 8, (iii)
to the extent provided in Article III, Section 9 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, (iv) with respect to the termination of the Trust or
any Series or class to the extent and as provided in Article VIII,
Section 4, (v) to remove Trustees from office to the extent and as
provided in Article V, Section 6 and (vi) with respect to such
additional matters relating to the Trust as may be required by this
Declaration of Trust, the By-Laws 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. The number of
votes that each whole orfractional Share shall be entitled to vote
as to any matter on which it is entitled to vote shall be as
specified in the By-Laws. There shall be no cumulative voting
in the election of Trustees. Shares may be voted in person or by
proxy. A proxy with respect to Shares held in the name of two or
more persons shall be valid if executed by any one of them unless
at or prior to 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. At any
time when no Shares of a Series or class are outstanding the Trustees
may exercise all rights of Shareholders of that Series or class with
respect to matters affecting that Series or class and may with respect
to that Series or class take any action required by law, this
Declaration of Trust or the By-Laws to be taken by the Shareholders
thereof.
Section 2. Voting Power and Meetings. Meetings of the
Shareholders may be called by the Trustees for the purpose of electing
Trustees as provided in Article IV, Section 1 and for such other
purposes as may be prescribed by law, by this Declaration of Trust
or by the By-Laws. Meetings of the Shareholders may also be called
by the Trustees from time to time for the purpose of taking action
upon any other matter deemed by the Trustees to be necessary or
desirable. A meeting of Shareholders may be held at any place
within or outside the Commonwealth of Massachusetts designated
by the Trustees. Notice of any meeting of Shareholders,
stating the time and place of the meeting, shall be given or caused to
be given by the Trustees to each Shareholder by mailing such notice,
postage prepaid, at least seven days before such meeting, at the
Shareholder's address as it appears on the records of the Trust, or by
facsimile or other electronic transmission, at least seven days before
such meeting, to the telephone or facsimile number or e-mail or other
electronic address most recently furnished to the Trust (or its agent)
by the Shareholder. Whenever notice of a meeting is required to be
given to a Shareholder under this Declaration of Trust or the By-Laws,
a written waiver thereof, executed before or after the meeting by such
Shareholder or his attorney thereunto authorized and filed with the
records of the meeting, shall be deemed equivalent to such notice.
Section 3. Quorum and Required Vote. Except when a larger
quorum is required by law, by the By-Laws or by this Declaration of
Trust, 30% of the Shares entitled to vote shall constitute a quorum
at a Shareholders' meeting. When any one or more Series or classes
is to vote as a single class separate from any other Shares which
are to vote on the same matters as a separate class or classes, 30%
of the Shares of each such class entitled to vote shall constitute a
quorum at a Shareholders' meeting of that class. Any meeting of
Shareholders may be adjourned from time to time by a majority of
the votes properly cast upon the question, whether or not a quorum
is present, and the meeting may be held as adjourned within a
reasonable time after the date set for the original meeting without
further notice. When a quorum is present at any meeting, a majority
of the Shares voted shall decide any questions and a plurality shall
elect a Trustee, except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by law.
If any question on which the Shareholders are entitled to vote
would adversely affect the rights of any Series or class of
Shares, the vote of a majority (or such larger vote as is
required as aforesaid) of the Shares of such Series or class
which are entitled to vote, voting separately, shall also be
required to decide such question.
Section 4. Action by Written Consent. Any action taken by
Shareholders may be taken without a meeting if Shareholders holding
a majority of the Shares 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 by the By-Laws or by
law) and holding a majority (or such larger proportion as aforesaid)
of the Shares of any Series or class entitled to vote separately on
the matter consent to the action in writing and such written consents
are filed with the records of the meetings of Shareholders. Such
consent shall be treated for all purposes as a vote taken at a meeting
of Shareholders.
Section 5. Additional Provisions. The By-Laws may include
further provisions for Shareholders' votes and meetings and related
matters.
Section 6. Removal of Trustees. No natural person shall serve
as Trustee after the holders of record of not less than two-thirds of
the outstanding Shares have declared that such Trustee be removed
from that office either by declaration in writing filed with the
Trust's custodian or by votes cast in person or by proxy at a meeting
called for the purpose. The Trustees shall call a meeting of
Shareholders for the purpose of voting upon the question of removal
of any Trustee to the extent required by the 1940 Act.
ARTICLE VI
Net Income, Distributions, and Redemptions and Repurchases
Section 1. Distributions of Net Income. The Trustees may
each year, or more frequently if they so determine, distribute to
the Shareholders of each Series out of the assets of such Series
such amounts as the Trustees may determine. Except as otherwise
permitted by Section 6 of Article III in the case of Multi-Class
Series, all dividends and distributions on Shares of a particular
Series shall be distributed pro rata to the holders of that Series
in proportion to the number of Shares of that Series held by such
holders and recorded on the books of the Trust at the date and
time of record established for the payment of such dividend or
distributions.
The manner of determining net income, income, asset values,
capital gains, expenses, liabilities and reserves of any Series
or class may from time to time be altered as necessary or
desirable in the judgment of the Trustees to conform such manner
of determination to any other method prescribed or permitted by
applicable law. Net income shall be determined by the Trustees
or by such person as they may authorize at the times and in the
manner provided in the By-Laws. Determinations of net income
of any Series or class and determinations of income, asset
value, capital gains, expenses and liabilities made by the
Trustees, or by such person as they may authorize, in good
faith, shall be binding on all parties concerned. The foregoing
sentence shall not be construed to protect any Trustee, officer
or agent of the Trust against any liability to the Trust or its
security holders to which he or she would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of
his or her office.
If, for any reason, the net income of any Series or class
determined at any time is a negative amount, the pro rata share of
such negative amount allocable to each Shareholder of such Series
or class shall constitute a liability of such Shareholder to that
Series or class which shall be paid out of such Shareholder's
account at such times and in such manner as the Trustees may from
time to time determine (x) out of the accrued dividend account of
such Shareholder, (y) by reducing the number of Shares of that
Series or class in the account of such Shareholder or (z)
otherwise.
Section 2. Redemptions and Repurchases. The Trust shall
purchase such Shares as are offered by any Shareholder for
redemption, upon the presentation of a proper instrument of
transfer together with 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 determined in
accordance with the By-Laws, next determined. 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 weekends or holidays, or if permitted by the rules of
the Commission during periods when trading on the New York Stock
Exchange is restricted or during any emergency which makes it
impracticable for the Trust to dispose of the investments of the
applicable Series or to determine fairly the value of the net
assets belonging to such Series or attributable to any class
thereof or during any other period permitted by order of the
Commission for the protection of investors, such obligations
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.
The redemption price may in any case or cases be paid
wholly or partly in kind if the Trustees determine that such
payment is advisable in the interest of the remaining
Shareholders of the Series the Shares of which are being
redeemed. The fair value, selection and quantity of any
securities or other property so paid or delivered as all or
part of the redemption price may be determined by or under
authority of the Trustees. In no case shall the Trust be
liable for any delay of any corporation or other person in
transferring securities selected for delivery as all or part
of any payment in kind.
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: (i) if at such
time such Shareholder owns Shares of any Series or class having an
aggregate net asset value of less than an amount determined from
time to time by the Trustees; (ii) to the extent that such
Shareholder owns Shares equal to or in excess of a percentage
determined from time to time by the Trustees of the outstanding
Shares of the Trust or of any Series or class; (iii) if the Trustees
determine that such Shareholder is engaging in conduct that is
harmful to the Trust or any Series or class; or (iv) if the Trustees
otherwise determine such redemption to be necessary or appropriate.
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. No Trustee, officer,
employee or agent of the Trust shall be subject to any liability
whatsoever to any person in connection with Trust property or the
affairs of the Trust, and no Trustee shall be responsible or liable
in any event for any neglect or wrong-doing of any officer, agent,
employee, Manager or principal underwriter of the Trust or for the
act or omission of any other Trustee. For the sake of clarification
and without limiting the foregoing, the appointment, designation or
identification of a Trustee as the chairman of the Board, the lead
or assistant lead independent Trustee, a member or chairman of a
committee of the Board, an expert on any topic or in any area
(including an audit committee financial expert) or as having any
other special appointment, designation or identification shall not
(a) impose on that person any duty, obligation or liability that is
greater than the duties, obligations and liabilities imposed on
that person as a Trustee in the absence of the appointment,
designation or identification or (b) affect in any way such
Trustees rights or entitlement to indemnification, and no Trustee
who has special skills or expertise, or is appointed, designated or
identified as aforesaid, shall (x) be held to a higher standard of
care by virtue thereof or (y) be limited with respect to any
indemnification to which such Trustee would otherwise be entitled.
Nothing in this Declaration of Trust, including without limitation
anything in this Article VII, Section 2, shall protect any
Trustee, officer, employee or agent of the Trust against any
liabilities to the Trust or its Shareholders to which he, she or
it would otherwise be subject by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his, her or its office or position
with or on behalf of the Trust.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever issued,
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 issued, 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
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 any Series or
class shall look only to the assets of the Trust, or, to the extent
that the liability of the Trust may have been expressly limited by
contract to the assets of a particular Series or attributable to a
particular class, only to the assets belonging to the relevant
Series or attributable to the relevant class, for payment under
such credit, contract or claim; and neither the Shareholders nor
the Trustees, nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable
therefor. Nothing in this Declaration of Trust shall protect any
Trustee against any liability to which such Trustee would otherwise
be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or
undertaking made or issued on behalf of the Trust by the Trustees,
by any officer or officers or otherwise 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 or otherwise and not
individually and that the obligations of such instrument are not
binding upon any of them or the Shareholders individually but are
binding only upon the assets and property of the Trust or upon the
assets belonging to the Series or attributable to the class for
the benefit of which the Trustees have caused the note, bond,
contract, instrument, certificate or undertaking to be made or
issued, and may contain such further recital as he or she or they
may deem appropriate, but the omission of any such recital shall
not operate to bind any Trustee or Trustees or officer or officers
or Shareholders or any other person 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 willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and for nothing
else, and shall not be liable for errors of judgment or mistakes
of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this
Declaration of Trust, and 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. Termination of Trust, Series or Class. Unless
terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by
vote of at least 66-2/3% of the Shares of each Series entitled
to vote and voting separately by Series, or by the Trustees by
written notice to the Shareholders. Any Series or class may be
terminated at any time by vote of at least 66-2/3% of the Shares
of that Series or class, or by the Trustees by written notice to
the Shareholders of that Series or class. Nothing in this
Declaration of Trust or the By-Laws shall restrict the power of
the Trustees to terminate any Series or class of Shares by
written notice to the Shareholders of such Series, whether or
not such Shareholders have voted (or are proposed to vote) with
respect to a merger, reorganization, sale of assets or similar
transaction involving such Series or class of Shares.
Upon termination of the Trust (or any Series or class, as
the case may be), after paying or otherwise providing for all
charges, taxes, expenses and liabilities belonging, severally,
to each Series (or the applicable Series or attributable to the
particular class, as the case may be), whether due or accrued or
anticipated as may be determined by the Trustees, the Trust shall,
in accordance with such procedures as the Trustees consider
appropriate, reduce the remaining assets belonging, severally,
to each Series (or the applicable Series or attributable to the
particular class, as the case may be), to distributable form in
cash or shares or other securities, or any combination thereof,
and distribute the proceeds belonging to each Series (or the
applicable Series or attributable to the particular class, as
the case may be), to the Shareholders of that Series (or class,
as the case may be), as a Series (or class, as the case may be),
ratably according to the number of Shares of that Series (or class,
as the case may be) held by the several Shareholders on the date
of termination.
Section 5. Reorganizations. The Trust, or any one or more
Series of the Trust, may, either as the successor, survivor or
non-survivor, (1) consolidate or merge with one or more other trusts,
series, sub-trusts, partnerships, limited liability companies,
associations or corporations organized under the laws of the
Commonwealth of Massachusetts or any jurisdiction, to form a
consolidated or merged trust, series, sub-trust, partnership,
limited liability company, association or corporation under the laws
of any jurisdiction under the laws of which any one of the
constituent entities is organized or (2) transfer all or a
substantial portion of its assets to one or more other trusts, series,
sub-trusts, partnerships, limited liability companies, associations
or corporations organized under the laws of the Commonwealth of
Massachusetts or any other jurisdiction, or have one or more such
trusts, series, sub-trusts, partnerships, limited liability
companies, associations or corporations transfer all or a substantial
portion of its assets to it, any such consolidation, merger or
transfer to be upon such terms and conditions as are specified in
an agreement and plan of reorganization authorized and approved by
the Trustees and entered into by the Trust, or one or more Series,
as the case may be, in connection therewith. Unless otherwise
required by applicable law, any such consolidation, merger or
transfer may be authorized by vote of a majority of the Trustees then
in office without the approval of Shareholders of the Trust or
relevant Series.
Section 6. Filing of Copies, Reference, Headings. The original
or a copy of this instrument and of each amendment hereto shall be kept
at the office of the Trust where it may be inspected by any Shareholder.
A copy of this instrument and of each amendment hereto shall be filed
by the Trust with the Secretary of the Commonwealth of Massachusetts
and with 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 to 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.
Section 7. 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 8. Amendments. Except as specifically provided herein,
the Trustees may without shareholder vote amend or otherwise supplement
this Declaration of Trust by making an amendment, a Declaration of Trust
supplemental hereto or an amended and restated Declaration of Trust.
Shareholders shall have the right to vote (a) on any amendment that
would affect their right to vote granted in Section 1 of Article V;
(b) on any amendment to this Section 8; (c) on any amendment as may
be required by law or by the Trusts registration statement filed with
the Commission; and (d) on any amendment submitted to them by the
Trustees. Any required or permitted to be submitted to Shareholders
of one or more Series or classes that, as the Trustees determine,
shall affect the Shareholders of one or more Series or classes shall
be authorized by a vote of the Shareholders of each Series or class
affected and no vote of shareholders of a Series or Class not
affected shall be required.
Section 9. Addresses. The address of the Trust is 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The address of each of the
Trustees is 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals as of the day first above written.
/s/ Xxxxxx X. Xxxxxxx, Xx. /s/ Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxxx, Xx. Xxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxx /s/ Xxxx X. Xxxxx
Xxxxxx X. Xxxx Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxxx /s/ Xxxxxxx Xxxxx
Xxxx X. Xxxxxxxx Xxxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxx
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