EXHIBIT (1)
STATE STREET CAPITAL TRUST
FIRST AMENDED AND RESTATED
MASTER TRUST AGREEMENT
The AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts on
the 8th day of November, 1988, by the Trustees thereunder, and by the
holders of shares of beneficial interest to be issued thereunder as therein
provided, is hereby amended and restated in its entirety this 5th day of
February, 1993.
WITNESSETH
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial
interest in separate series, each separate series to be a Sub-Trust
hereunder, and to issue classes of Shares of any Sub-Trust or divide Shares
of any Sub-Trust into two or more classes, all in accordance with the
provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts business trust 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 benefit of the holders
from time to time of shares of beneficial interest in this Trust or
Sub-Trusts (as hereinafter defined) created hereunder as hereinafter set
forth.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1 Name. This Trust shall be known as State Street Capital
Trust and the Trustees shall conduct the business of the Trust under that
name or any other name or names as they may from time to time determine.
Section 1.2 Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "By-Laws" shall mean the By-Laws of the Trust as amended
from time to time;
(b) "Class" refers to any class of Shares or any Series or
Sub-Trust established and designated under or in accordance with the
provisions of Article IV;
(c) "Commission" shall have the meaning given it in the 1940
Act;
(d) "Declaration of Trust" shall mean this First Amended and
Restated Agreement and Declaration of Trust as amended or restated from
time to time;
(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) "Shareholder" means a record owner of Shares;
(g) "Shares" refers to the transferable units of interest into
which the beneficial interest in the Trust and each Sub-Trust of the Trust
and/or any class of any Sub-Trust (as the context may require) shall be
divided from time to time;
(h) "Sub-Trust" or "Series" refers to a series of Shares
established and designated under or in accordance with the provisions of
Article IV;
(i) "Trust" refers to the Massachusetts business trust
established by this Declaration of Trust, as amended from time to time,
inclusive of each and every Sub-Trust established hereunder; and
(j) "Trustees" refers to the Trustees of the Trust and of each
Sub-Trust hereunder named herein or elected in accordance with Article III.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Shareholders of the Trust and each Sub-Trust of the Trust one or more
investment programs primarily in securities and debt instruments.
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ARTICLE III
THE TRUSTEES
Section 3.1 Number, Designation, Election, Term, etc.
(a) Trustees. The Trustees hereof are Xxxx X. Xxxxxx,
Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxx, Xxxxxxx X. Xxxxx Xxxxxx, Xxxxx X. Xxxxx
and Xxxxxx X. Xxxx.
(b) Number. The Trustees serving as such, whether named above
or hereafter becoming Trustees, may increase or decrease (to not less than
two at any time after the effective date of the Trust's Registration
Statement on Form N-1A with the Commission) the number of Trustees to a
number other than the number theretofore determined. No decrease in the
number of Trustees shall have the effect of removing any Trustee from
office prior to the expiration of his term, but the number of Trustees may
be decreased in conjunction with the removal of a Trustee pursuant to
subsection (e) of this Section 3.1.
(c) Election and Term. The Shareholders shall elect a Board of
Trustees at the first meeting of Shareholders following the initial public
offering of Shares. Each Trustee, whether named above or hereafter
becoming a Trustee, shall serve as a Trustee of the Trust and of each
Sub-Trust hereunder during the lifetime of this Trust and until its
termination as hereinafter provided except as such Trustee sooner dies,
resigns or is removed. The Trustees may elect their own successors, and
may, pursuant to Section 3.1(f) hereof, appoint Trustees to fill vacancies;
provided, however, that the Shareholders shall have the right to elect
Trustees subsequent to the initial election contemplated by this Section
3.1(c) in the event there shall at any time be no Trustees in office or
when and to the extent otherwise required by Section 16(a) of the 1940 Act.
(d) Resignation and Retirement. Any Trustee may resign his
trust or retire as a Trustee, by written instrument signed by him and
delivered to the other Trustees or to any officer of the Trust, and such
resignation or retirement shall take effect upon such delivery or upon such
later date as is specified in such instrument and shall be effective as to
the Trust and each Sub-Trust hereunder.
(e) Removal. Any Trustee may be removed with or without cause
at any time: (i) by written instrument, signed by at least two-thirds of
the number of Trustees in office
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immediately prior to such removal, specifying the date upon which such
removal will become effective; or (ii) by vote of Shareholders holding not
less than two-thirds of the shares then outstanding, cast in person or by
proxy at any meeting called for the purpose. Any such removal shall be
effective as to the Trust and each Sub-Trust hereunder.
(f) Vacancies. Any vacancy or anticipated vacancy resulting
from any reason, including without limitation the death, resignation,
retirement, removal or incapacity of any of the Trustees, or resulting from
an increase in the number of Trustees by the other Trustees may (but so
long as there are at least two remaining Trustees, need not unless required
by the 0000 Xxx) be filled by a majority of the remaining Trustees, subject
to the provisions of Section 16(a) of the 1940 Act, through the appointment
in writing of such other person as such remaining Trustees in their
discretion shall determine and such appointment shall be effective upon the
written acceptance of the person named therein to serve as a Trustee and
agreement by such person to be bound by the provisions of this Declaration
of Trust, except that any such appointment in anticipation of a vacancy to
occur by reason of retirement, resignation or increase in number of
Trustees to be effective at a later date shall become effective only at or
after the effective date of said retirement, resignation or increase in
number of Trustees. As soon as any Trustee so appointed shall have
accepted such appointment and shall have agreed in writing to be bound by
this Declaration of Trust and the appointment is effective, the Trust
estate shall vest in the new Trustee, together with the continuing
Trustees, without any further act or conveyance.
(g) Effect of Death, Resignation, etc. The death, resignation,
retirement, removal or incapacity of the Trustees, or any one of them,
shall not operate to annul or terminate the Trust or any Sub-Trust
hereunder, or to revoke or terminate any existing agency or contract
created or entered into pursuant to the terms of this Declaration of Trust.
(h) No Accounting. Except to the extent required by the 1940
Act or under circumstances which would justify his removal for cause, no
person ceasing to be a Trustee as a result of his death, resignation,
retirement, removal or incapacity (nor the estate of such person) shall be
required to make an accounting to the Shareholders or remaining Trustees
upon such cessation.
Section 3.2 Powers of Trustees. 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 and
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the purpose of the Trust. The Trustees in all instances shall act as principals,
and are and shall be free from the control of the Shareholders. The Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or appropriate in connection with the management of the Trust. The Trustees
shall not be bound or limited by present or future laws or customs with regard
to investment by trustees or fiduciaries, but shall have full authority and
absolute power and control over the assets of the Trust and the business of the
Trust to the same extent as if the Trustees were sole owners of the assets of
the Trust and the business in their own right, including such authority, power
and control to do all acts and things as they, in their uncontrolled discretion,
shall deem proper to accomplish the purposes of this Trust. Without limiting the
foregoing, the Trustees may adopt By-Laws not inconsistent with this Declaration
of Trust providing for the conduct of the business and 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 xxx or be sued in the name of the Trust;
they may from time to time in accordance with the provisions of Section 4.1
hereof establish Sub-Trusts, each such Sub-Trust to operate as a separate and
distinct investment medium and with separately defined investment objectives and
policies and distinct investment purposes; from time to time in accordance with
the provisions of Section-4.1 hereof establish classes of Shares of any Series
or Sub-Trust or divide the Shares of any Series or Sub-Trust into classes; they
may as they consider appropriate elect and remove officers and appoint and
terminate agents and consultants and hire and terminate employees, any one or
more of the foregoing of whom may be a Trustee, and may provide for the
compensation of all of the foregoing; they may appoint from their own number,
and terminate, any one or more committees consisting of two or more Trustees,
including without implied limitation an executive committee, which may when the
Trustees are not in session and subject to the 1940 Act, exercise some or all of
the power and authority of the Trustees as the Trustees may determine; in
accordance with Section 3.3 they may employ one or more advisers,
administrators, depositories and custodians and may authorize any depository or
custodian to employ subcustodians or agents and to deposit all or any part of
such assets in a system or systems for the central handling of securities and
debt instruments, retain transfer, dividend, accounting or Shareholder servicing
agents or any of the foregoing, provide for the distribution of Shares by the
Trust through one or more distributors, principal underwriters or otherwise, and
set record dates or times for the determination of Shareholders or various of
them with respect to various matters; they may compensate or provide for the
compensation of the Trustees, officers, advisers, administrators, custodians,
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other agents, consultants and employees of the Trust or the Trustees on such
terms as they deem appropriate; and in general they may delegate to any officer
of the Trust, to any committee of the Trustees and to any employee, adviser,
administrator, distributor, depository, custodian, transfer and dividend
disbursing agent, or any other agent or consultant of the Trust such authority,
powers, functions and duties as they consider desirable or appropriate for the
conduct of the business and affairs of the Trust, including without implied
limitation the power and authority to act in the name of the Trust and any
Sub-Trust and of the Trustees, to sign documents and to act as attorney-in-fact
for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with
the 1940 Act or other applicable law, the Trustees shall have power and
authority for and on behalf of the Trust and each separate Sub-Trust
established hereunder:
(a) Investments. To invest and reinvest cash and other
property, and to hold cash or other property uninvested without in any
event being bound or limited by any present or future law or custom in
regard to investments by trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge,
mortgage, hypothecate, write options on and lease any or all of the assets
of the Trust;
(c) Ownership Powers. To vote or give assent, or exercise any
rights of ownership, with respect to stock or other securities, debt
instruments 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, debt instruments or property as the Trustees shall deem
proper;
(d) Subscription. To exercise powers and rights of
subscription or otherwise which in any manner arise out of ownership of
securities or debt instruments;
(e) Form of Holding. To hold any security, debt instrument 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 of any Sub-Trust or in the name of a custodian, subcustodian or
other depository or a nominee or nominees or otherwise;
(f) Reorganization, etc. To consent to or participate in any
plan for the reorganization, consolidation or merger of any corporation or
issuer, any security or debt instrument of which is or was held in the
Trust; to consent to
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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 or debt instrument held in the Trust;
(g) Voting Trusts, etc. To join with other holders of any
securities or debt instruments in acting through a committee, depository,
voting trustee or otherwise, and in that connection to deposit any security
or debt instrument with, or transfer any security or debt instrument to,
any such committee, depository or trustee, and to delegate to them such
power and authority with relation to any security or debt instrument
(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, depository or trustee as the Trustees shall
deem proper;
(h) Compromise. To compromise, arbitrate or otherwise adjust
claims in favor of or against the Trust or any Sub-Trust or any matter in
controversy, including but not limited to claims for taxes;
(i) Partnerships, etc. To enter into joint ventures, general
or limited partnerships and any other combinations or associations;
(j) Borrowing and Security. To borrow funds and to mortgage
and pledge the assets of the Trust or any part thereof to secure
obligations arising in connection with such borrowing;
(k) Guarantees, etc. 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;
(l) Insurance. 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, consultants,
investment advisers, managers, administrators, distributors, principal
underwriters, or independent contractors, or any thereof (or any person
connected therewith), 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
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or omitted by any such person in any such capacity, 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;
(m) Pensions, etc. 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
(n) Distribution Plans. To adopt on behalf of the Trust or any
Sub-Trust a plan of distribution and related agreements thereto pursuant to
the terms of Rule 12b-1 of the 1940 Act and to make payments from the
assets of the Trust or the relevant Sub-Trust or Sub-Trusts pursuant to
said Rule 12b-1 plan.
Except as otherwise provided by the 1940 Act or other applicable law,
this Declaration of Trust or the By-Laws, any action to be taken by the
Trustees on behalf of the Trust or any Sub-Trust may be taken by a majority
of the Trustees present at a meeting of Trustees (a quorum, consisting of
at least one-half of the Trustees then in the office, being present),
within or without Massachusetts, including any meeting held by means of a
conference telephone or other communications equipment by means of which
all persons participating in the meeting can 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 (or such larger or different number as may be required by the 1940
Act or other applicable law).
Section 3.3 Certain Contracts. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of present
and future law or custom in regard to delegation of powers by trustees
generally, the Trustees may, at any time and from time to time and without
limiting the generality of their powers and authority otherwise set forth
herein, enter into one or more contracts with any one or more corporations,
trusts, associations, partnerships, limited partnerships, other types of
organizations, or individuals (a "Contracting Party"), to provide for the
performance and assumption of some or all of the following services, duties
and responsibilities to, for or on behalf of the Trust and/or any
Sub-Trust, and/or the Trustees, and to provide for the performance and
assumption of such other services, duties and
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responsibilities in addition to those set forth below as the Trustees may
determine appropriate:
(a) Advisory. Subject to the general supervision of the
Trustees and in conformity with the stated policy of the Trustees with
respect to the investments of the Trust or of the assets belonging to any
Sub-Trust of the Trust (as that phrase is defined in subsection (a) of
Section 4.2), to manage such investments and assets, make investment
decisions with respect thereto, and to place purchase and sale orders for
portfolio transactions relating to such investments and assets;
(b) Administration. Subject to the general supervision of the
Trustees and in conformity with any policies of the Trustees with respect
to the operations of the Trust and each Sub-Trust (including each class
thereof), to supervise all or any part of the operations of the Trust and
each Sub-Trust, and to provide all or any part of the administrative and
clerical personnel, office space and office equipment and services
appropriate for the efficient administration and operations of the Trust
and each Sub-Trust;
(c) Distribution. To distribute the Shares of the Trust and
each Sub-Trust (including any classes thereof), to be principal underwriter
of such Shares, and/or to act as agent of the Trust and each Sub-Trust in
the sale of Shares and the acceptance or rejection of orders for the
purchase of Shares;
(d) Custodian and Depository. To act as depository for and to
maintain custody of the property of the Trust and each Sub-Trust and
accounting records in connection therewith;
(e) Transfer and Dividend Disbursing Agent. To maintain
records of the ownership of outstanding Shares, the issuance and redemption
and the transfer thereof; and to disburse any dividends declared by the
Trustees and in accordance with the policies of the Trustees and/or the
instructions of any particular Shareholder to reinvest any such dividends;
(f) Shareholder Servicing. To provide service with respect to
the relationship of the Trust and its Shareholders, records with respect to
Shareholders and their Shares, and similar matters; and
(g) Accounting. To handle all or part of the accounting
responsibilities, whether with respect to the Trust's properties,
Shareholders or otherwise.
The same person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the
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Trust and/or the Trustees, and the contracts with respect thereto may
contain such terms interpretive of or in addition to the delineation of the
services, duties and responsibilities provided for, including provisions
that are not inconsistent with the 1940 Act relating to the standard of
duty of and the rights to indemnification of the Contracting Party and
others, as the Trustees may determine. Nothing herein shall preclude,
prevent or limit the Trust or a Contracting Party from entering into
sub-contractual arrangements relating to any of the matters referred to in
Sections 3.3(a) through (g) hereof.
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
Contracting Party, or of or for any parent or
affiliate of any Contracting Party, or that the
Contracting Party or any parent or affiliate thereof
is a Shareholder or has an interest in the Trust or
any Sub-Trust, or that
(ii) any Contracting Party may have a contract providing
for the rendering of any similar services to one or
more other corporations, trusts, associations,
partnerships, limited partnerships or other
organizations, or have other business or interests,
shall not affect the validity of any contract for the performance and
assumption of services, duties and responsibilities to, for or of the Trust
or any Sub-Trust and/or the Trustees 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, any Sub-Trust or its
Shareholders, provided that in the case of any relationship or interest
referred to in the preceding clause (i) on the part of any Trustee or
officer of the Trust either (x) the material facts as to such relationship
or interest have been disclosed to or are known by the Trustees not having
any such relationship or interest and the contract involved is approved in
good faith by a majority of such Trustees not having any such relationship
or interest (even though such unrelated or disinterested Trustees are less
than a quorum of all of the Trustees), (y) the material facts as to such
relationship or interest and as to the contract have been disclosed to or
are known by the Shareholders entitled to vote thereon and the contract
involved is specifically approved in
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good faith by vote of the Shareholders, or (z) the specific contract
involved is fair to the Trust as of the time it is authorized, approved or
ratified by the Trustees or by the Shareholders.
Section 3.4 Payment of Trust Expenses and Compensation of Trustees.
The Trustees are authorized to pay or to cause to be paid out of the
principal or income of the Trust or any Sub-Trust, or partly out of
principal and partly out of income, and to charge or allocate the same to,
between or among such one or more of the Sub-Trusts and/or one or more
classes of Shares thereof that may be established and designated pursuant
to Article IV, as the Trustees deem fair, all expenses, fees, charges,
taxes and liabilities incurred or arising in connection with the Trust or
any Sub-Trust and/or one or more classes of Shares thereof, or in
connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of
the Trust's officers, employees, investment adviser, administrator,
distributor, principal underwriter, auditor, counsel, depository,
custodian, transfer agent, dividend disbursing agent, accounting agent,
Shareholder servicing agent, and such other agents, consultants and
independent contractors and such other expenses and charges as the Trustees
may deem necessary or proper to incur. Without limiting the generality of
any other provision hereof, the Trustees shall be entitled to reasonable
compensation from the Trust for their services as Trustees and may fix the
amount of such compensation.
Section 3.5 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.
ARTICLE IV
SHARES
Section 4.1 Description of Shares. The beneficial interest in the
Trust shall be divided into Shares, all with par value $.001 per Share, but
the Trustees shall have the authority from time to time to issue Shares in
one or more Series (each of which Series of Shares shall be a separate and
distinct Sub-Trust of the Trust, including without limitation those
Sub-Trusts specifically established and designated in Section 4.2), as they
deem necessary or desirable. For all purposes under this Declaration of
Trust or otherwise, including, without implied limitation: (i) with
respect to the rights of creditors and (ii) for purposes of interpreting
the relative rights of each Sub-Trust and the Shareholders of each
Sub-Trust, each Sub-Trust established hereunder shall be deemed
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to be a separate trust. The Trustees shall have exclusive power without
the requirement of Shareholder approval to establish and designate such
separate and distinct Sub-Trusts, and to fix and determine the relative
rights and preferences as between the shares of the separate Sub-Trusts as
to right of redemption and the price, terms and manner of redemption,
special and relative rights as to dividends and other distributions and on
liquidation, sinking or purchase fund provisions, conversion rights, and
conditions under which the several Sub-Trusts shall have separate voting
rights or no voting rights.
In addition, the Trustees shall have exclusive power, without the
requirement of Shareholder approval, to issue classes of Shares of any
Sub-Trust or divide the Shares of any Sub-Trust into classes, each class
having such different dividend, liquidation, voting and other rights as the
Trustees may determine, and may establish and designate the specific
classes of Shares of each Sub-Trust. The fact that a Sub-Trust shall have
initially been established and designated without any specific
establishment or designation of classes (i.e., that all Shares of such
Sub-Trust are initially of a single class), or that a Sub-Trust shall have
more than one established and designated class, shall not limit the
authority of the Trustees to establish and designate separate classes, or
one or more further classes, of said Sub-Trust without approval of the
holders of the initial class thereof, or previously established and
designated class or classes thereof, provided that the establishment and
designation of such further separate classes would not adversely affect the
rights of the holders of the initial or previously established and
designated class or classes.
The number of authorized Shares and the number of Shares of each
Sub-Trust or class thereof that may be issued is unlimited, and the
Trustees may issue Shares of any Sub-Trust or class thereof for such
consideration and on such terms as they may determine (or for no
consideration if pursuant to a Share dividend or split-up), all without
action or approval of the Shareholders. All Shares when so issued on the
terms determined by the Trustees shall be fully paid and non-assessable
(but may be subject to mandatory contribution back to the Trust as provided
in subsection (h) of Section 4.2). The Trustees may classify or reclassify
any unissued Shares or any Shares previously issued and reacquired of any
Sub-Trust or class thereof into one or more Sub-Trusts or classes thereof
that may be established and designated from time to time. The Trustees may
hold as treasury Shares, reissue for such consideration and on such terms
as they may determine, or cancel, at their discretion from time to time,
any Shares of any Sub-Trust or class thereof reacquired by the Trust.
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The Trustees may from time to time close the transfer books or
establish record dates and times for the purposes of determining the
holders of Shares entitled to be treated as such, to the extent provided or
referred to in Section 5.3.
The establishment and designation of any Sub-Trust or of any class of
Shares of any Sub-Trust in addition to those established and designated in
Section 4.2 shall be effective (i) upon the execution by a majority of the
then Trustees of an instrument setting forth such establishment and
designation and the relative rights and preferences of the Shares of such
Sub-Trust or class, (ii) upon the execution of an instrument in writing by
an officer of the Trust pursuant to the vote of a majority of the Trustees,
or (iii) as otherwise provided in either such instrument. At any time that
there are no Shares outstanding of any particular Sub-Trust or class
previously established and designated the Trustees may by an instrument
executed by a majority of their number (or by an instrument executed by an
officer of the Trust pursuant to a vote of a majority of the Trustees)
abolish that Sub-Trust or class and the establishment and designation
thereof. Each instrument establishing and designating any Sub-Trust shall
have the status of an amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any organization
in which any such person is interested may acquire, own, hold and dispose
of Shares of any Sub-Trust (including any classes thereof) of the Trust to
the same extent as if such person were not a Trustee, officer or other
agent of the Trust; and the Trust may issue and sell or cause to be issued
and sold and may purchase Shares of any Sub-Trust (including any classes
thereof) from any such person or any such organization subject only to the
general limitations, restrictions or other provisions applicable to the
sale or purchase of Shares of such Sub-Trust (including any classes
thereof) generally.
Section 4.2 Establishment and Designation of Sub-Trusts. Without
limiting the authority of the Trustees set forth in Section 4.1 to
establish and designate further Sub-Trusts and classes, the Trustees hereby
establish and designate two Sub-Trusts: the "State Street Research Capital
Fund" and the "State Street Research Small Capitalization Growth Fund."
The Shares of such Sub-Trust and any Shares of any further Sub-Trusts that
may from time to time be established and designated by the Trustees shall
(unless the Trustees otherwise determine with respect to some further
Sub-Trust at the time of establishing and designating the same) have the
following relative rights and preferences:
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(a) Assets Belonging to Sub-Trusts. All consideration received
by the Trust for the issue or sale of Shares of a particular Sub-Trust or
any classes thereof, together with all assets in which such consideration
is invested or reinvested, all income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be
held by the Trustees in trust for the benefit of the holders of Shares of
that Sub-Trust or class thereof and shall irrevocably belong to that
Sub-Trust (and be allocable to any classes thereof) for all purposes, and
shall be so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of
such assets, and any funds or payments derived from any reinvestment of
such proceeds, in whatever form the same may be, together with any General
Items (as hereinafter defined) allocated to that Sub-Trust as provided in
the following sentence, are herein referred to as "assets belonging to"
that Sub-Trust. 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 Sub-Trust (collectively
"General Items"), the Trustees shall allocate such General Items to and
among any one or more of the Sub-Trusts established and designated from
time to time in such manner and on such basis as they, in their sole
discretion, deem fair and equitable; and any General Items so allocated to
a particular Sub-Trust shall belong to that Sub-Trust (and be allocable to
any classes thereof). Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Sub-Trusts (including
any classes thereof) for all purposes.
(b) Liabilities Belonging to Sub-Trusts. The assets belonging
to each particular Sub-Trust shall be charged with the liabilities in
respect of that Sub-Trust and all expenses, costs, charges and reserves
belonging to that Sub-Trust, and any general liabilities, expenses, costs,
charges or reserves of the Trust which are not readily identifiable as
belonging to any particular Sub-Trust shall be allocated and charged by the
Trustees to and among any one or more of the Sub-Trusts established and
designated from time to time in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. In addition,
the liabilities in respect of a particular class of Shares of a particular
Sub-Trust and all expenses, costs, charges and reserves belonging to that
class of Shares, and any general liabilities, expenses, costs, charges or
reserves of that particular Sub-Trust which are not readily identifiable as
belonging to any particular class of
14
Shares of that Sub-Trust shall be allocated and charged by the Trustees to
and among any one or more of the classes of Shares of that Sub-Trust
established and designated from time to time in such manner and on such
basis as the Trustees in their sole discretion deem fair and equitable.
The liabilities, expenses, costs, charges and reserves allocated and so
charged to a Sub-Trust or class thereof are herein referred to as
"liabilities belonging to" that Sub-Trust or class thereof. Each
allocation of liabilities, expenses, costs, charges and reserves by the
Trustees shall be conclusive and binding upon the Shareholders, creditors
and any other persons dealing with the Trust or any Sub-Trust (including
any classes thereof) for all purposes. Any creditor of any Sub-Trust may
look only to the assets of that Sub-Trust to satisfy such creditor's debt.
The Trustees shall have full discretion, to the extent not inconsistent
with the 1940 Act, to determine which items shall be treated as income and
which items as capital; and each such determination and allocation shall be
conclusive and binding upon the Shareholders.
(c) Dividends. Dividends and distributions on Shares of a
particular Sub-Trust or any class thereof may be paid with such frequency
as the Trustees may determine, which may be daily or otherwise pursuant to
a standing resolution or resolutions adopted only once or with such
frequency as the Trustees may determine, to the holders of Shares of that
Sub-Trust or class, from such of the income and capital gains, accrued or
realized, from the assets belonging to that Sub-Trust or in the case of a
class, belonging to that Sub-Trust and allocable to that class, as the
Trustees may determine, after providing for actual and accrued liabilities
belonging to that Sub-Trust or class. All dividends and distributions on
Shares of a particular Sub-Trust or class thereof shall be distributed pro
rata to the holders of Shares of that Sub-Trust or class in proportion to
the number of Shares of that Sub-Trust or class held by such holders at the
date and time of record established for the payment of such dividends or
distributions, except that in connection with any dividend or distribution
program or procedure the Trustees may determine that no dividend or
distribution shall be payable on Shares as to which the Shareholder's
purchase order and/or payment have not been received by the time or times
established by the Trustees under such program or procedure. Such
dividends and distributions may be made in cash or Shares of that Sub-Trust
or class or a combination thereof as determined by the Trustees or pursuant
to any program that the Trustees may have in effect at the time for the
election by each Shareholder of the mode of the making of such dividend or
distribution to that Shareholder. Any such dividend or distribution paid
in Shares will be paid at the net asset value thereof as determined in
accordance with subsection (h) of Section 4.2.
15
(d) Liquidation. In the event of the liquidation or
dissolution of the Trust, the Shareholders of each Sub-Trust and each class
thereof that has been established and designated shall be entitled to
receive, when and as declared by the Trustees, the excess of the assets
belonging to that Sub-Trust, or in the case of a class, belonging to that
Sub-Trust and allocable to that class, over the liabilities belonging to
that Sub-Trust or class. The assets so distributable to the Shareholders
of any particular Sub-Trust or class thereof shall be distributed among
such Shareholders in proportion to the number of Shares of that Sub-Trust
or class thereof held by them and recorded on the books of the Trust. The
liquidation of any particular Sub-Trust or class thereof may be authorized
at any time by vote of a majority of the Trustees then in office.
(e) Voting. On each matter submitted to a vote of the
Shareholders, each holder of a Share of each Sub-Trust or class thereof
shall be entitled to one vote for each whole Share standing in his name on
the books of the Trust, irrespective of the series thereof, and all Shares
of all series shall vote as a single class ("Single Class Voting");
provided, however, that (a) as to any other matter with respect to which a
separate vote of one or more series or class is required by the 1940 Act,
such requirements as to a separate vote by such series or class shall apply
in lieu of Single Class Voting as described above; and (b) as to any matter
which affects the interests of one or more particular series, only the
holders of Shares of the one or more affected series or class shall be
entitled to vote.
(f) Redemption by Shareholder. Each holder of Shares of a
particular Sub-Trust or any class thereof shall have the right at such
times as may be permitted by the Trust, but no less frequently than once
each week, to require the Trust to redeem all or any part of his Shares of
that Sub-Trust or class thereof at a redemption price equal to the net
asset value per Share of that Sub-Trust or class thereof next determined in
accordance with subsection (h) of this Section 4.2 after the Shares are
properly tendered for redemption, subject to any contingent deferred sales
charge in effect at the time of redemption. Payment of the redemption
price shall be in cash; provided, however, that if the Trustees determine,
which determination shall be conclusive, that conditions exist which make
payment wholly in cash unwise or undesirable, the Trust may, subject to the
requirements of the 1940 Act, make payment wholly or partly in securities
or other assets belonging to the Sub-Trust of which the Shares being
redeemed are part at the value of such securities or assets used in such
determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of
16
the holders of Shares of any Sub-Trust or class thereof to require the
Trust to redeem Shares of that Sub-Trust during any period or at any time
when and to the extent permissible under the 1940 Act.
(g) Redemption by Trust. Each Share of each Sub-Trust or class
thereof that has been established and designated is subject to redemption
by the Trust at the redemption price which would be applicable if such
Share was then being redeemed by the Shareholder pursuant to subsection (f)
of this Section 4.2: (a) at any time, if the Trustees determine in their
sole discretion and by majority vote that failure to so redeem may have
materially adverse consequences to the Trust or any Sub-Trust or to the
holders of the Shares of the Trust or any Sub-Trust thereof or class
thereof, or (b) upon such other conditions as may from time to time be
determined by the Trustees and set forth in the then current Prospectus of
the Trust with respect to maintenance of Shareholder accounts of a minimum
amount. Upon such redemption the holders of the Shares so redeemed shall
have no further right with respect thereto other than to receive payment of
such redemption price.
(h) Net Asset Value. The net asset value per Share of any
Sub-Trust shall be (i) in the case of a Sub-Trust whose Shares are not
divided into classes, the quotient obtained by dividing the value of the
net assets of that Sub-Trust (being the value of the assets belonging to
that Sub-Trust less the liabilities belonging to that Sub-Trust) by the
total number of Shares of that Sub-Trust outstanding, and (ii) in the case
of a class of Shares of a Sub-Trust whose Shares are divided into classes,
the quotient obtained by dividing the value of the net assets of that
Sub-Trust allocable to such class (being the value of the assets belonging
to that Sub-Trust allocable to such class less the liabilities belonging to
such class) by the total number of Shares of such class outstanding; all
determined in accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the Trustees from
time to time.
The Trustees may determine to maintain the net asset value per Share of
any Sub-Trust at a designated constant dollar amount and in connection
therewith may adopt procedures not inconsistent with the 1940 Act for the
continuing declarations of income attributable to that Sub-Trust as
dividends payable in additional Shares of that Sub-Trust at the designated
constant dollar amount and for the handling of any losses attributable to
that Sub-Trust. Such procedures may provide that in the event of any loss
each Shareholder shall be deemed to have contributed to the capital of the
Trust attributable to that Sub-Trust his pro rata portion of the total
number of
17
Shares required to be cancelled in order to permit the net asset value per
Share of that Sub-Trust to be maintained, after reflecting such loss, at
the designated constant dollar amount. Each Shareholder of the Trust shall
be deemed to have agreed, by his investment in any Sub-Trust with respect
to which the Trustees shall have adopted any such procedure, to make the
contribution referred to in the preceding sentence in the event of any such
loss.
(i) Transfer. All Shares of each particular Sub-Trust or class
thereof shall be transferable, but transfers of Shares of a particular
Sub-Trust or class thereof will be recorded on the Share transfer records
of the Trust applicable to that Sub-Trust or class only at such times as
Shareholders shall have the right to require the Trust to redeem Shares of
that Sub-Trust or class and at such other times as may be permitted by the
Trustees.
(j) Equality. Except as provided herein or in the instrument
designating and establishing any class of Shares or any Sub-Trust, all
Shares of each particular Sub-Trust or class thereof shall represent an
equal proportionate interest in the assets belonging to that Sub-Trust, or
in the case of a class, belonging to that Sub-Trust and allocable to that
class (subject to the liabilities belonging to that Sub-Trust or class),
and each Share of any particular Sub-Trust or class shall be equal to each
other Share of that Sub-Trust or class; but the provisions of this sentence
shall not restrict any distinctions permissible under subsection (c) of
this Section 4.2 that may exist with respect to dividends and distributions
on Shares of the same Sub-Trust or class. The Trustees may from time to
time divide or combine the Shares of any particular Sub-Trust or class into
a greater or lesser number of Shares of that Sub-Trust or class without
thereby changing the proportionate beneficial interest in the assets
belonging to that Sub-Trust or class or in any way affecting the rights of
Shares of any other Sub-Trust or class.
(k) Fractions. Any fractional Share of any Sub-Trust or class,
if any such fractional Share is outstanding, shall carry proportionately
all the rights and obligations of a whole Share of that Sub-Trust or class,
including rights and obligations with respect to voting, receipt of
dividends and distributions, redemption of Shares, and liquidation of the
Trust.
(l) Conversion Rights. Subject to compliance with the
requirements of the 1940 Act, the Trustees shall have the authority to
provide that holders of Shares of any Sub-Trust or class thereof shall have
the right to convert said Shares into Shares of one or more other Sub-Trust
or class thereof in
18
accordance with such requirements and procedures as may be established by
the Trustees.
(m) Class Differences. The relative rights and preferences of the
classes of any Sub-Trust may differ in such other respects as the Trustees
may determine to be appropriate in their sole discretion, provided that
such differences are set forth in the instrument establishing and
designating such classes and executed by a majority of the Trustees (or by
an instrument executed by an officer of the Trust pursuant to a vote of a
majority of the Trustees).
Section 4.3 Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or of a transfer or similar agent for
the Trust, which books shall be maintained separately for the Shares of
each Sub-Trust and each class thereof that has been established and
designated. No certificates certifying the ownership of Shares need be
issued except as the Trustees may otherwise determine from time to time.
The Trustees may make such rules as they consider appropriate for the
issuance of Share certificates, the use of facsimile signatures, the
transfer 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 and as to the number of
Shares of each Sub-Trust and class thereof held from time to time by each
such Shareholder.
Section 4.4 Investments in the Trust. The Trustees may accept
investments in the Trust and each Sub-Trust thereof from such persons and
on such terms and for such consideration, not inconsistent with the
provisions of the 1940 Act, as they from time to time authorize. The
Trustees may authorize any distributor, principal underwriter, custodian,
transfer agent or other person to accept orders for the purchase of Shares
that conform to such authorized terms and to reject any purchase orders for
Shares whether or not conforming to such authorized terms.
Section 4.5 No Pre-emptive Rights. Shareholders shall have no
pre-emptive or other right to subscribe to any additional Shares or other
securities issued by the Trust.
Section 4.6 Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights
provided in this instrument. Every Shareholder by virtue of having become
a Shareholder shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto. The death of a Shareholder
during the continuance of the Trust shall not operate to terminate the
Trust or any Sub-Trust thereof nor entitle the
19
representative of any deceased Shareholder to an accounting or 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.
Section 4.7 No Appraisal Rights. Shareholders shall have no right to
demand payment for their shares or to any other rights of dissenting
Shareholders in the event the Trust participates in any transaction which
would give rise to appraisal or dissenters' rights by a Shareholder of a
corporation organized under Chapter 156B of the General Laws of the
Commonwealth of Massachusetts, or otherwise.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers. The Shareholders shall have power to vote
only (i) for the election or removal of Trustees as provided in Section
3.1, (ii) with respect to any contract with a Contracting Party as provided
in Section 3.3 as to which Shareholder approval is as required by the 1940
Act, (iii) with respect to any termination or reorganization of the Trust
or any Sub-Trust to the extent and as provided in Sections 7.1 and 7.2,
(iv) with respect to any amendment of this Declaration of Trust to the
extent and as provided in Section 7.3, (v) to the same extent as the
stockholders of a Massachusetts business corporation as to whether or not a
court action, proceeding or claim should or should not be brought or
maintained derivatively or as a class action on behalf of the Trust or any
Sub-Trust thereof or the Shareholders (provided, however, that a
Shareholder of a particular Sub-Trust shall not be entitled to a derivative
or class action on behalf of any other Sub-Trust (or Shareholder of any
other Sub-Trust) of the Trust) and (vi) with respect to such additional
matters relating to the Trust as may be required by the 1940 Act, 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. There shall be no cumulative voting in
the election of Trustees. Shares may
20
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. Until Shares are issued, the Trustees may
exercise all rights of Shareholders and may take any action required by
law, this Declaration of Trust or the By-Laws to be taken by Shareholders.
Section 5.2 Meetings. No annual or regular meeting of Shareholders is
required. Special meetings of Shareholders may be called by the Trustees
from time to time for the purpose of taking action upon any matter
requiring the vote or authority of the Shareholders as herein provided or
upon any other matter deemed by the Trustees to be necessary or desirable.
Written notice of any meeting of Shareholders shall be given or caused to
be given by the Trustees by mailing such notice at least seven days before
such meeting, postage prepaid, stating the time, place and purpose of the
meeting, to each Shareholder at the Shareholder's address as it appears on
the records of the Trust. The Trustees shall promptly call and give notice
of a meeting of Shareholders for the purpose of voting upon removal of any
Trustee of the Trust when requested to do so in writing by Shareholders
holding not less than 10% of the Shares then outstanding. If the Trustees
shall fail to call or give notice of any meeting of Shareholders for a
period of 30 days after written application by Shareholders holding at
least 10% of the Shares then outstanding requesting a meeting be called for
any other purpose requiring action by the Shareholders as provided herein
or in the By-Laws, then Shareholders holding at least 10% of the Shares
then outstanding may call and give notice of such meeting, and thereupon
the meeting shall be held in the manner provided for herein in case of call
thereof by the Trustees.
Section 5.3 Record Dates. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any
adjournment thereof, or who are entitled to participate in any dividend or
distribution, or for the purpose of any other action, the Trustees may from
time to time close the transfer books for such period, not exceeding 30
days (except at or in connection with the termination of the Trust), as the
Trustees may determine; or without closing the transfer books the Trustees
may fix a reasonable date and time prior to the date of any meeting of
Shareholders or other action as the date and time of record for the
determination of Shareholders entitled to vote at such meeting or any
adjournment thereof or to be treated as Shareholders of record for purposes
of such
21
other action, and any Shareholder who was a Shareholder at the date and
time so fixed shall be entitled to vote at such meeting or any adjournment
thereof or to be treated as a Shareholder of record for purposes of such
other action, even though he has since that date and time disposed of his
Shares, and no Shareholder becoming such after that date and time shall be
so entitled to vote at such meeting or any adjournment thereof or to be
treated as a Shareholder of record for purposes of such other action.
Section 5.4 Quorum and Required Vote. Except as otherwise provided by
the 1940 Act or other applicable law, 30% of the Shares entitled to vote
shall be a quorum for the transaction of business at a Shareholders'
meeting, but any lesser number shall be sufficient for adjournments. Any
adjourned session or sessions may be held, within a reasonable time after
the date set for the original meeting without the necessity of further
notice. A majority of the Shares voted, at a meeting of which a quorum is
present shall decide any questions and a plurality shall elect a Trustee,
except when a different vote is required or permitted by any provision of
the 1940 Act or other applicable law or by this Declaration of Trust or the
By-Laws.
Section 5.5 Action by Written Consent. Subject to the provisions of
the 1940 Act and other applicable law, any action taken by Shareholders may
be taken without a meeting if a majority of Shareholders entitled to vote
on the matter (or such larger proportion thereof as shall be required by
the 1940 Act or by any express provision of this Declaration of Trust or
the By-Laws) consent to the action in writing and such written consents are
filed with the records of the meetings of Shareholders. Such consent shall
be treated for all purposes as a vote taken at a meeting of Shareholders.
Section 5.6 Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
stockholders of a Massachusetts business corporation under the
Massachusetts Business Corporation Law.
Section 5.7 Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
Section 5.8 Shareholder Communications. Whenever ten or more
shareholders of record who have been such for at least six months preceding
the date of application, and who hold in the aggregate either Shares having
a net asset value of at least $25,000 or at least 1% of the outstanding
shares, whichever is less, shall apply to the Trustees in writing, stating
that they wish to communicate with other Shareholders with a view to
obtaining signatures to a request for a Shareholder meeting and
22
accompanied by a form of communication and request which they wish to
transmit, the Trustees shall within five business days after receipt of
such application either (1) afford to such applicants access to a list of
the names and addresses of all Shareholders as recorded upon the books of
the Trust or Sub-Trust, as applicable; or (2) inform such applicants as to
the approximate number of Shareholders of record, and the approximate cost
of mailing to them the proposed communication and form of request.
If the Trustees elect to follow the course specified in clause (2)
above, the Trustees, upon the written request of such applicants,
accompanied by a tender of the material to be mailed and of the reasonable
expenses of mailing, shall, with reasonable promptness, mail such material
to all Shareholders of record at their addresses as recorded on the books,
unless within five business days after such tender the Trustees shall mail
to such applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement signed by at least a
majority of the Trustees to the effect that in their opinion either such
material contains untrue statements of fact or omits to state facts
necessary to make the statements contained therein not misleading, or would
be in violation of applicable law, and specifying the basis of such
opinion. The Trustees shall thereafter comply with any order entered by
the Commission and the requirements of the 1940 Act and the Securities
Exchange Act of 1934.
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable; Notice.
All persons extending credit to, contracting with or having any claim against
the Trust shall look only to the assets of the Sub-Trust with which such person
dealt for payment under such credit, contract or claim; and neither the
Shareholders of any Sub-Trust nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, nor any other Sub-Trust
shall be personally liable therefor. Every note, bond, contract, instrument,
certificate or undertaking and every other act or thing whatsoever executed or
done by or on behalf of the Trust, any Sub-Trust or the Trustees or any of them
in connection with the Trust shall be conclusively deemed to have been executed
or done only by or for the Trust (or the Sub-Trust) or the Trustees and not
personally. Nothing in this Declaration of Trust shall protect any Trustee or
officer against any liability to the Trust or the Shareholders to which such
Trustee or officer would otherwise be subject by reason of willful misfeasance,
bad
23
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee or of such officer.
Section 6.2 Trustee's Good Faith Action; Expert Advice; No Bond or
Surety. The exercise by the Trustees of their powers and discretion
hereunder shall be binding upon everyone interested. A Trustee shall be
liable for his own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. Subject to the foregoing, (a) the
Trustees shall not be responsible or liable in any event for any neglect or
wrongdoing of any officer, agent, employee, consultant, adviser,
administrator, distributor or principal underwriter, custodian or transfer,
dividend disbursing, Shareholder servicing or accounting agent of the
Trust, nor shall any Trustee be responsible for the act or omission of any
other Trustee; (b) the Trustees may take advice of counsel or other experts
with respect to the meaning and operation of this Declaration of Trust and
their duties as Trustees, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such
advice; and (c) in discharging their duties, the Trustees shall be entitled
to rely upon the books of account of the Trust and upon written reports
made to the Trustees by any officer appointed by them, any independent
public accountant, and (with respect to the subject matter of the contract
involved) any officer, partner or responsible employee of a Contracting
Party appointed by the Trustees pursuant to Section 3.3. The Trustees as
such shall not be required to give any bond or surety or any other security
for the performance of their duties.
Section 6.3 Indemnification of Shareholders. In case any Shareholder
(or former Shareholder) of any Sub-Trust of the Trust shall be charged or
held to be personally liable for any obligation or liability of the Trust
solely by reason of being or having been a Shareholder and not because of
such Shareholder's acts or omissions or for some other reason, said
Sub-Trust (upon proper and timely request by the Shareholder) shall assume
the defense against such charge and satisfy any judgment thereon, and the
Shareholder or former Shareholder (or his 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 said Sub-Trust estate to be held harmless from and
indemnified against all loss and expense arising from such liability.
Section 6.4 Indemnification of Trustees, Officers, etc. The Trust
shall indemnify (from the assets of the Sub-Trust or
24
Sub-Trusts in question) 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, including but not limited to amounts
paid in satisfaction of judgments, in compromise or as fines and penalties,
and expenses, including reasonable accountants' and counsel fees, 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
person may be or may have been threatened, while in office or thereafter,
by reason of being or having been such a Trustee or officer, director or
trustee, except with respect to any matter as to which it has been
determined that such Covered Person had acted with willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office (such conduct referred to hereafter
as "Disabling Conduct"). A determination that the Covered Person is
entitled to indemnification may be made by (i) a final decision on the
merits by a court or other body before whom the proceeding was brought that
the person to be indemnified was not liable by reason of Disabling Conduct,
(ii) dismissal of a court action or an administrative proceeding against a
Covered Person for insufficiency of evidence of Disabling Conduct, or
(iii) a reasonable determination, based upon a review of the facts, that the
indemnitee was not liable by reason of Disabling Conduct by (a) a vote of a
majority of a quorum of Trustees who are neither "interested persons" of
the Trust as defined in section 2(a)(19) of the 1940 Act nor parties to the
proceeding, or (b) an independent legal counsel in a written opinion.
Expenses, including accountants' and counsel fees so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), may be paid from time to time by the
Sub-Trust in question in advance of the final disposition of any such
action, suit or proceeding, provided that the Covered Person shall have
undertaken to repay the amounts so paid to the Sub-Trust in question if it
is ultimately determined that indemnification of such expenses is not
authorized under this Article VI and (i) the Covered Person shall have
provided security for such undertaking, (ii) the Trust shall be insured
against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the disinterested Trustees who are not a party to
the proceeding, or an independent legal counsel in a written opinion, shall
have determined, based on a review of readily available facts (as opposed
to a full trial-type inquiry), that there is reason to believe that the
25
Covered Person ultimately will be found entitled to indemnification.
Section 6.5 Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 6.4,
pursuant to a consent decree or otherwise, no such indemnification either
for said payment or for any other expenses shall be provided unless such
indemnification shall be approved (a) by a majority of the disinterested
Trustees who are not parties to the proceeding or (b) by an independent
legal counsel in a written opinion. Approval by the Trustees pursuant to
clause (a) or by independent legal counsel pursuant to clause (b) shall not
prevent the recovery from any Covered Person of any amount paid to such
Covered Person in accordance with any of such clauses as indemnification if
such Covered Person is subsequently adjudicated by a court of competent
jurisdiction to have been liable to the Trust or its Shareholders by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Covered Person's office.
Section 6.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VI shall not be exclusive of or
affect any other rights to which any such Covered Person may be entitled.
As used in this Article VI, "Covered Person" shall include such person's
heirs, executors and administrators, an "interested Covered Person" is one
against whom the action, suit or other proceeding in question or another
action, suit or other proceeding on the same or similar grounds is then or
has been pending or threatened, and a "disinterested" person is a person
against whom none of such actions, suits or other proceedings or another
action, suit or other proceeding on the same or similar grounds is then or
has been pending or threatened. Nothing contained in this Article shall
affect any rights to indemnification to which personnel of the Trust, other
than Trustees and officers, and other persons may be entitled by contract
or otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of any such person.
Section 6.7 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.
26
ARTICLE VII
MISCELLANEOUS
Section 7.1 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time and,
without limiting the generality of the foregoing, no change, alteration or
modification with respect to any Sub-Trust or class thereof shall operate
to terminate the Trust. The Trust may be terminated at any time by a
majority of the Trustees then in office subject to a favorable vote of a
majority of the outstanding voting securities, as defined in the 1940 Act
[Shares of each Sub-Trust voting separately by Sub-Trust]. Any Sub-Trust
or class liquidated pursuant to Section 4.2(d) or whose shares have been
redeemed pursuant to Section 4.2(g), may be terminated at any time by a
majority of the Trustees then in office, except that any such Sub-Trust or
class which is the last remaining Sub-Trust or class may only be so
terminated by the Trustees with the favorable vote of a majority of the
outstanding voting securities, as defined in the 1940 Act, of such
Sub-Trust or class.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, 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
to distributable form in cash, securities or other property, or any
combination thereof, and distribute the proceeds to the Shareholders.
Section 7.2 Reorganization. The Trustees may sell, convey, merge and
transfer the assets of the Trust, or the assets belonging to any one or
more Sub-Trusts, to another trust, partnership, association or corporation
organized under the laws of any state of the United States, or to the Trust
to be held as assets belonging to another Sub-Trust of the Trust, in
exchange for cash, shares or other securities (including, in the case of a
transfer to another Sub-Trust of the Trust, Shares of such other Sub-Trust
or class thereof) with such transfer either (1) being made subject to, or
with the assumption by the transferee of, the liabilities belonging to each
Sub-Trust the assets of which are so transferred, or (2) not being made
subject to, or not with the assumption of, such liabilities; provided,
however, that no assets belonging to any particular Sub-Trust shall be so
transferred unless the terms of such transfer shall have first been
approved at a meeting called for the purpose by the affirmative vote of the
holders of a majority of the outstanding voting Shares, as defined in the
1940 Act, of that Sub-Trust. Following such
27
transfer, the Trustees shall distribute such cash, shares or other
securities (taking into account the differences among the classes of Shares
of the Sub-Trust, if any, and giving due effect to the assets and
liabilities belonging to and any other differences among the various
Sub-Trusts the assets belonging to which have so been transferred) among
the Shareholders of the Sub-Trust the assets belonging to which have been
so transferred; and if all of the assets of the Trust have been so
transferred, the Trust shall be terminated.
The Trust, or any one or more Sub-Trusts, may, either as the successor,
survivor, or non-survivor, (1) consolidate with one or more other trusts,
partnerships, associations or corporations organized under the laws of the
Commonwealth of Massachusetts or any other state of the United States, to
form a new consolidated trust, partnership, association or corporation
under the laws of which any one of the constituent entities is organized,
or (2) merge into one or more other trusts, partnerships, associations or
corporations organized under the laws of the Commonwealth of Massachusetts
or any other state of the United States, or have one or more such trusts,
partnerships, associations or corporations merged into it, any such
consolidation or merger to be upon such terms and conditions as are
specified in an agreement and plan of reorganization entered into by the
Trust, or one or more Sub-Trusts as the case may be, in connection
therewith. The terms "merge" or "merger" as used herein shall also include
the purchase or acquisition of any assets of any other trust, partnership,
association or corporation which is an investment company organized under
the laws of the Commonwealth of Massachusetts or any other state of the
United States. Any such consolidation or merger, other than the purchase
or acquisition of assets of an investment company or other collective
investment entity which is not registered under the 1940 Act, shall require
the affirmative vote of the holders of a majority of the outstanding voting
Shares, as defined in the 1940 Act, of each Sub-Trust affected thereby.
Section 7.3 Amendments. All rights granted to the Shareholders under
this Declaration of Trust are granted subject to the reservation of the
right to amend this Declaration of Trust as herein provided, except that no
amendment shall repeal the limitations on personal liability of any
Shareholder or Trustee or repeal the prohibition of assessment upon the
Shareholders without the express consent of each Shareholder or Trustee
involved. Subject to the foregoing, the provisions of this Declaration of
Trust (whether or not related to the rights of Shareholders) may be amended
at any time, so long as such amendment does not have a material adverse
effect on the rights of any Shareholder with respect to which such
amendment is or purports to be applicable and so
28
long as such amendment is not in contravention of applicable law, including
the 1940 Act, by an instrument in writing signed by a majority of the then
Trustees (or by an officer of the Trust pursuant to the vote of a majority
of such Trustees). Any amendment to this Declaration of Trust that does
have a material adverse effect on the rights of Shareholders may be adopted
at any time by an instrument in writing signed by a majority of the then
Trustees (or by an officer of the Trust pursuant to a vote of a majority of
such Trustees) when authorized to do so by the vote in accordance with
subsection (e) of Section 4.2 of Shareholders holding a majority of the
Shares entitled to vote. Subject to the foregoing, any such amendment
shall be effective as provided in the instrument containing the terms of
such amendment or, if there is no provision therein with respect to
effectiveness, upon the execution of such instrument and of a certificate
(which may be a part of such instrument) executed by a Trustee or officer
of the Trust to the effect that such amendment has been duly adopted.
Section 7.4 Filing of Copies; References; Headings. The original or a
copy of the 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 as well as any
other governmental office where such filing may from time to time be
required, but the failure to make any such filing shall not impair the
effectiveness of this instrument or any such amendment. 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, as to the identities of
the Trustees and officers, 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 a whole as the same may be amended or affected by any such
amendments. The masculine gender shall include the feminine and neuter
genders. 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.
Section 7.5 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. Reference herein to Massachusetts Business Corporation Law
is not intended to
29
give the Trust, the Trustees, the Shareholders or any other person any
right, power, authority or responsibility applicable only to or in
connection with an entity organized in corporate form. The Trust shall be
of the type referred to in Section 1 of Chapter 182 of the Massachusetts
General Laws and 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.
IN WITNESS WHEREOF, the undersigned officer of the Trust hereby adopts
the foregoing on behalf of the Trust pursuant to authorization by the
Trustees of the Trust.
/s/ Xxxxxxxxxxx Xxxxxxxx, Xx.
-----------------------------
Xxxxxxxxxxx Xxxxxxxx, Xx.
Secretary
Principal office of the Trust: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
214768.c1
STATE STREET CAPITAL TRUST
Amendment No. 1 to First Amended and
Restated Master Trust Agreement
INSTRUMENT OF AMENDMENT
Pursuant to Article IV, Sections 4.1 and 4.2 and Article VII, Section 7.3
of the First Amended and Restated Master Trust Agreement of the State Street
Capital Trust (the "Trust") dated February 5, 1993, ("Master Trust Agreement")
the Master Trust Agreement is hereby amended to establish and designate an
additional series of shares to be known as MetLife - State Street Research Small
Capitalization Value Fund, such new series to have the relative rights and
preferences set forth in Article IV, Section 4.2, subsections (a) through (l) of
the Master Trust Agreement.
Pursuant to Article VII, Section 7.3 of the Master Trust Agreement, the
third sentence of the third paragraph of Article IV, Section 4.1 of the Master
Trust Agreement is hereby amended to read as follows:
"The Trustees may classify or reclassify any Shares of any Sub-Trust
or class into one or more Sub-Trusts or classes that may be
established and designated from time to time provided, however, that
no such classification or reclassification shall adversely affect
the rights of any Shareholder."
This Amendment shall be effective as of February 1, 1995.
IN WITNESS WHEREOF, the undersigned officer of the Trust hereby adopts the
foregoing on behalf of the Trust pursuant to authorization by the Trustees of
the Trust.
/s/ Xxxxxxxxxxx Xxxxxxxx, Xx.
-----------------------------
Xxxxxxxxxxx Xxxxxxxx, Xx.
Secretary
STATE STREET CAPITAL TRUST
Amendment No. 2 to First Amended and
Restated Master Trust Agreement
INSTRUMENT OF AMENDMENT
Pursuant to Article I, Section 1.1, Article IV, Sections 4.1 and 4.2 and
Article VII, Section 7.3 of the First Amended and Restated Master Trust
Agreement of the State Street Capital Trust (the "Trust") dated February 5, 1993
("Master Trust Agreement"), as heretofore amended, the Master Trust Agreement is
hereby amended to change the name of the Trust to State Street Research Capital
Trust and to change the name of one of the series of shares under such Trust,
currently a Sub-Trust designated as MetLife - State Street Research Small
Capitalization Value Fund, to State Street Research Small Capitalization Value
Fund.
This Amendment shall be effective as of February 1, 1995.
IN WITNESS WHEREOF, the undersigned officer of the Trust hereby adopts the
foregoing on behalf of the Trust pursuant to authorization by the Trustees of
the Trust.
/s/ Xxxxxxxxxxx Xxxxxxxx, Xx.
-----------------------------
Xxxxxxxxxxx Xxxxxxxx, Xx.
Secretary
