XXXXXX EUROPE EQUITY FUND
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
This AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
made at Boston, Massachusetts, on this 21st day of March, 2014,
hereby amends and restates in its entirety the Agreement and
Declaration of Trust dated April 30, 2003, as heretofore amended,
by the Trustees hereunder and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business
of an investment company; and
WHEREAS, the 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 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 in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Name
Section 1. This Trust shall be known as Xxxxxx Europe Equity
Fund and the Trustees shall conduct the business of the Trust
under that name or any other name as they may from time to time
determine.
Definitions
Section 2. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) The Trust refers to the Massachusetts business trust
established by this Agreement and Declaration of Trust, as
amended from time to time;
(b) Trustees refers to the Trustees of the Trust elected in
accordance with Article IV;
(c) Shares means the equal proportionate transferable units
of interest into which the beneficial interest in the Trust
shall be divided from time to time or, if more than one
series or class of Shares is authorized by the Trustees, the
equal proportionate transferable units into which each
series or class of Shares shall be divided from time to
time;
(d) Shareholder means a record owner of Shares;
(e) The 1940 Act refers to the Investment Company Act of
1940 and the Rules and Regulations thereunder, all as
amended from time to time;
(f) The terms Affiliated Person, Assignment, Commission,
Interested Person, Principal Underwriter and Majority
Shareholder Vote (the 67% or 50% requirement of the third
sentence of Section 2(a)(42) of the 1940 Act, whichever may
be applicable) shall have the meanings given them in the
1940 Act (as modified by any applicable exemptive order
issued thereunder by the Securities and Exchange
Commission);
(g) Declaration of Trust shall mean this Agreement and
Declaration of Trust as amended or restated from time to
time;
(h) Bylaws shall mean the Bylaws of the Trust as amended or
restated from time to time;
(i) The term series or series of Shares refers to the one
or more separate investment portfolios of the Trust into
which the assets and liabilities of the Trust may be divided
and the Shares of the Trust representing the beneficial
interest of Shareholders in such respective portfolios; and
(j) The term class or class of Shares refers to the
division of Shares representing any series into two or more
classes as provided in Article III, Section 1 hereof.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed
investment primarily in securities, debt instruments and other
instruments and rights of a financial character.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The number of Shares authorized shall be unlimited.
The Shares of the Trust shall be issued in one or more series as
the Trustees may, without shareholder approval, authorize. Each
series shall be preferred over all other series in respect of the
assets allocated to that series 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 Shares, without par value unless otherwise
determined by the Trustees, 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 and as shall be set forth in the Bylaws. The
Trustees may, without Shareholder approval, 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. The
Trustees may also, without shareholder approval, from time to
time combine the Shares or two or more classes of any series into
a single class.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on the
books of the Trust or a transfer or similar agent. No
certificates certifying the ownership of Shares shall be issued
except as the Trustees may otherwise determine from time to time.
The Trustees may make such rules as they consider appropriate for
the issuance of Share certificates, the retirement of Share
certificates, the transfer of Shares and similar matters. The
record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to who
are the Shareholders of each series and class and as to the
number of Shares of each series and class held from time to time
by each Shareholder.
Investment in the Trust
Section 3. The Trustees shall accept investments in the Trust
from such persons and on such terms and for such consideration,
which may consist of cash or tangible or intangible property or a
combination thereof, as they or the Bylaws from time to time
authorize.
All consideration received by the Trust for the issue or
sale of Shares of each series, together with all income,
earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation thereof, and any
funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably belong to the
series of Shares with respect to which the same were received by
the Trust for all purposes, subject only to the rights of
creditors, and shall be so handled upon the books of account of
the Trust and are herein referred to as assets of such series.
No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right
to subscribe to any additional Shares or other securities issued
by the Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property
giving only the rights provided in this Declaration of Trust or
the Bylaws. Every Shareholder by virtue of having become a
Shareholder shall be held to have expressly assented and agreed
to the terms of this Declaration of Trust and the Bylaws and to
have become a party thereto. The death of a Shareholder during
the continuance of the Trust shall not operate to terminate the
same nor entitle the representative of any deceased Shareholder
to an accounting or to take any action in court or elsewhere
against the Trust or the Trustees, but only to the rights of said
decedent under this Trust. Ownership of Shares shall not entitle
the Shareholder to any title in or to the whole or any part of
the Trust property or right to call for a partition or division
of the same or for an accounting, nor shall the ownership of
Shares constitute the Shareholders partners. Neither the Trust
nor the Trustees, nor any officer, employee or agent of the Trust
shall have any power to bind personally any Shareholder, nor
except as specifically provided herein to call upon any
Shareholder for the payment of any sum of money or assessment
whatsoever other than such as the Shareholder may at any time
personally agree to pay.
Derivative Actions
Section 6. No Shareholder shall have the right to bring or
maintain any court action, proceeding or claim on behalf of the
Trust 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 Clerk of the Trust at the
Trusts 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 may determine
whether the bringing or maintenance of any such action,
proceeding or claim is in the best interests of the Trust or,
alternatively in their sole discretion, may submit the matter to
a vote of the Shareholders of the Trust. Any such determination
made by the Trustees in good faith shall be binding on all
Shareholders.
Exclusive Selection of Forum for Certain Shareholder Actions
Section 7. Any action brought by a Shareholder seeking to
enforce any right or privilege of Shareholders under this
Declaration of Trust, challenging the powers of the Trustees
thereunder, alleging a breach of fiduciary duty by any Trustee or
officer of the Trust or otherwise involving primarily the
internal affairs of the Trust may be brought only in the courts
of The Commonwealth of Massachusetts.
ARTICLE IV
The Trustees
Election
Section 1. A Trustee may be elected either by the Trustees or
by the Shareholders. The number of Trustees shall be fixed from
time to time by the Trustees and, at or after the commencement of
the business of the Trust, shall be not less than three. Each
Trustee elected by the Trustees or the Shareholders shall serve
until he or she retires, resigns, is removed or dies or until the
next meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her
successor.
Removal
Section 2. A Trustee may be removed (i) by vote of the
holders of twothirds of the outstanding Shares at a meeting
called for the purpose or (ii) by vote of twothirds of the
Trustees.
Effect of Death, Resignation, etc. of a Trustee
Section 3. The death, declination, resignation, retirement,
removal or incapacity of the Trustees, or any one of them, shall
not operate to annul the Trust or to revoke any existing agency
created pursuant to the terms of this Declaration of Trust.
Powers
Section 4. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient
to carry out that responsibility. Without limiting the foregoing,
the Trustees may adopt Bylaws not inconsistent with this
Declaration of Trust providing for the conduct of the business of
the Trust and may amend and repeal them to the extent that such
Bylaws do not reserve that right to the Shareholders; they may
fill vacancies in or add to their number, and 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, any one or more committees consisting of
two or more Trustees, including an executive committee which may,
when the Trustees are not in session, exercise some or all of the
power and authority of the Trustees as the Trustees may
determine; they may employ one or more custodians of the assets
of the Trust and may authorize such custodians to employ
subcustodians and to deposit all or any part of such assets in a
system or systems for the central handling of securities, retain
a transfer agent or a Shareholder servicing agent, or both,
provide for the distribution of Shares by the Trust, through one
or more principal underwriters or otherwise, set record dates for
the determination of Shareholders with respect to various
matters, and in general delegate such authority as they consider
desirable to any officer of the Trust, to any committee of the
Trustees and to any agent or employee of the Trust or to any such
custodian or underwriter.
Without limiting the foregoing, the Trustees shall have
power and authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(c) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to
execute and deliver proxies or powers of attorney to such person
or persons as the Trustees shall deem proper, granting to such
person or persons such power and discretion with relation to
securities or property as the Trustees shall deem proper;
(d) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable
form, or in the name of the Trustees or of the Trust or in the
name of a custodian, subcustodian or other depositary or a
nominee or nominees or otherwise;
(f) Subject to the provisions of Article III, Section 3, to
allocate assets, liabilities, income and expenses of the Trust to
a particular series of Shares or to apportion the same among two
or more series, provided that any liabilities or expenses
incurred by or arising in connection with a particular series of
Shares shall be payable solely out of the assets of that series;
and to the extent necessary or appropriate to give effect to the
preferences and special or relative rights and privileges of any
classes of Shares, to allocate assets, liabilities, income and
expenses of a series to a particular class of Shares of that
series or to apportion the same among two or more classes of
Shares of that series;
(g) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
issuer, any security of which is or was held 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;
(h) To join other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security
to, any such committee, depositary or trustee, and to delegate to
them such power and authority with relation to any security
(whether or not so deposited or transferred) as the Trustees
shall deem proper, and to agree to pay, and to pay, such portion
of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor
of or against the Trust or any matter in controversy, including
but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To borrow funds;
(l) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
and to mortgage and pledge the Trust property or any part thereof
to secure any of or all such obligations;
(m) To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the
conduct of the business, including without limitation, insurance
policies insuring the assets of the Trust and payment of
distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, investment advisers or managers, principal
underwriters, or independent contractors of the Trust
individually against all claims and liabilities of every nature
arising by reason of holding, being or having held any such
office or position, or by reason of any action alleged to have
been taken or omitted by any such person as Shareholder, Trustee,
officer, employee, agent, investment adviser or manager,
principal underwriter, or independent contractor, including any
action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to
indemnify such person against such liability; and
(n) To pay pensions for faithful service, as deemed appropriate
by the Trustees, and to adopt, establish and carry out pension,
profitsharing, 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. Except as otherwise provided herein or from time to
time in the Bylaws, any action to be taken by the Trustees may be
taken by a majority of the Trustees present at a meeting of the
Trustees (a quorum 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.
Payment of Expenses by Trust
Section 5. The Trustees are authorized to pay or to cause to
be paid out of the assets of the Trust, 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 Trusts officers,
employees, investment adviser or manager, principal underwriter,
auditor, counsel, custodian, transfer agent, Shareholder
servicing agent, and such other agents or independent contractors
and such other expenses and charges as the Trustees may deem
necessary or proper to incur, provided, however, that all
expenses, fees, charges, taxes and liabilities incurred by or
arising in connection with a particular series of Shares shall be
payable solely out of the assets of that series.
Ownership of Assets of the Trust
Section 6. Title to all of the assets of each series of
Shares and of the Trust shall at all times be considered as
vested in the Trustees.
Advisory, Management and Distribution
Section 7. Subject to a favorable Majority Shareholder Vote
to the extent required by applicable law, the Trustees may, at
any time and from time to time, contract for exclusive or
nonexclusive advisory and/or management services with any
corporation, trust, association or other organization (the
Manager), every such contract to comply with such requirements
and restrictions as may be set forth in the Bylaws; and any such
contract may contain such other terms interpretive of or in
addition to said requirements and restrictions as the Trustees
may determine, including, without limitation, authority to
determine from time to time what investments shall be purchased,
held, sold or exchanged and what portion, if any, of the assets
of the Trust shall be held uninvested and to make changes in the
Trusts investments. The Trustees may also, at any time and from
time to time, contract with the Manager or any other corporation,
trust, association or other organization, appointing it exclusive
or nonexclusive distributor or principal underwriter for the
Shares, every such contract to comply with such requirements and
restrictions as may be set forth in the Bylaws; and any such
contract may contain such other terms interpretive of or in
addition to said requirements and restrictions as the Trustees
may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee,
manager, adviser, principal underwriter or distributor or agent
of or for any corporation, trust, association, or other
organization, or of or for any parent or affiliate of any
organization, with which an advisory or management contract, or
principal underwriters or distributors 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
underwriters or distributors contract, or transfer, Shareholder
servicing or other agency contract may have been or may
hereafter be made also has an advisory or management contract,
or transfer, Shareholder servicing or other agency contract with
one or more other corporations, trusts, associations, or other
organizations, or has other business or interests
shall not affect the validity of any such contract or disqualify
any Shareholder, Trustee or officer of the Trust from voting upon
or executing the same or create any liability or accountability
to the Trust or its Shareholders.
ARTICLE V
Shareholders Voting Powers and Meetings
Voting Powers
Section 1. Subject to the voting powers of one or more classes
of Shares as set forth elsewhere in this Declaration of Trust or
in the Bylaws, the Shareholders shall have power to vote only (i)
for the election of Trustees as provided in Article IV, Section
1, (ii) for the removal of Trustees as provided in Article IV,
Section 2, (iii) with respect to any Manager as provided in
Article IV, Section 6, (iv) with respect to any termination of
this Trust to the extent and as provided in Article IX, Section
4, (v) with respect to any amendment of this Declaration of Trust
to the extent and as provided in Article IX, Section 8, and (vi)
with respect to such additional matters relating to the Trust as
may be required by this Declaration of Trust, the Bylaws or any
registration of the Trust with the Securities and Exchange
Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. Each whole Share
shall be entitled to one vote as to any matter on which it is
entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. 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 Bylaws, be voted in
the aggregate as a single class without regard to series or
classes of shares, except (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 Trustees have determined that 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.
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, in the case of a
challenge by any person other than the Trust, the burden of
proving invalidity shall rest on the challenger. Until Shares of
any series or class are issued, the Trustees may exercise all
rights of Shareholders and may take any action required by law,
this Declaration of Trust or the Bylaws to be taken by
Shareholders as to such series or class.
Voting Power and Meetings
Section 2. Meetings of Shareholders of any or all series or
classes 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 of such series or classes 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 entitled to vote at such meeting at
the Shareholders address as it appears on the records of the
Trust. If the Trustees shall fail to call or give notice of any
meeting of Shareholders for a period of 30 days after written
application by Shareholders holding at least 10% of the then
outstanding shares of all series and classes entitled to vote at
such meeting requesting a meeting to be called for a purpose
requiring action by the Shareholders as provided herein or in the
Bylaws, then Shareholders holding at least 10% of the then
outstanding Shares of all series and classes entitled to vote at
such meeting 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. Notice of a
meeting need not be given to any Shareholder if a written waiver
of notice, executed by him or her before or after the meeting, is
filed with the records of the meeting, or to any Shareholder who
attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him or her.
Quorum and Required Vote
Section 3. Thirty percent of Shares entitled to vote on a
particular matter shall be a quorum for the transaction of
business on that matter at a Shareholders meeting, except that
where any provision of law or of this Declaration of Trust or the
Bylaws requires that holders of any series or class shall vote as
an individual series or class, then thirty percent of the
aggregate number of Shares of that series or class entitled to
vote shall be necessary to constitute a quorum for the
transaction of business by that series or class. Any lesser
number shall be sufficient for adjournments. Any adjourned
session or sessions may be held, within a reasonable time after
the date set for the original meeting, without the necessity of
further notice. Except when a larger vote is required by any
provision of law or of this Declaration of Trust or the Bylaws, a
majority of the Shares voted shall decide any questions and a
plurality shall elect a Trustee, provided that where any
provision of law or of this Declaration of Trust or the Bylaws
requires that the holders of any series or class shall vote as an
individual series or class then a majority of the Shares of that
series or class voted on the matter (or a plurality with respect
to the election of a Trustee) shall decide that matter insofar as
that series or class is concerned.
Action by Written Consent
Section 4. Any action taken by Shareholders may be taken
without a meeting if a majority of Shareholders entitled to vote
on the matter (or such larger proportion thereof as shall be
required by any express provision of this Declaration of Trust or
the Bylaws) consent to the action in writing and such written
consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
Additional Provisions
Section 5. The Bylaws may include further provisions, not
inconsistent with this Declaration of Trust, regarding
Shareholders voting powers, the conduct of meetings and related
matters.
ARTICLE VI
Distributions, Redemptions and Repurchases
Distributions
Section 1. The Trustees may each year, or more frequently if
they so determine, distribute to the Shareholders of each series
out of the assets of such series such amounts as the Trustees may
determine. Any such distribution to the Shareholders of a
particular series shall be made to said Shareholders pro rata in
proportion to the number of Shares of such series held by each of
them, except to the extent otherwise required or permitted by the
preferences and special or relative rights and privileges of any
classes of Shares of that Series, and any distribution to the
Shareholders of a particular class of Shares shall be made to
such Shareholders pro rata in proportion to the number of Shares
of such class held by each of them. Such distributions shall be
made in cash, Shares or other property, or a combination thereof,
as determined by the Trustees. Any such distribution paid in
Shares will be paid at the net asset value thereof as determined
in accordance with the Bylaws.
Redemptions and Repurchases
Section 2. The Trust shall purchase such Shares as are offered
by any Shareholder for redemption, upon the presentation of any
certificate for the Shares to be purchased, a proper instrument
of transfer and a request directed to the Trust or a person
designated by the Trust that the Trust purchase such Shares, or
in accordance with such other procedures for redemption as the
Trustees may from time to time authorize; and the Trust will pay
therefor the net asset value thereof, as next determined in
accordance with the Bylaws, less any redemption charge fixed by
the Trustees. 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 at any time the
New York Stock Exchange is closed for other than customary
weekends or holidays, or, if permitted by rules of the Securities
and Exchange Commission, during periods when trading on the
Exchange is restricted or during any emergency which makes it
impractical for the Trust to dispose of its investments or to
determine fairly the value of its net assets, or during any other
period permitted by order of the Securities and Exchange
Commission for the protection of investors, such obligation may
be suspended or postponed by the Trustees. The Trust may also
purchase or repurchase Shares at a price not exceeding the net
asset value of such Shares in effect when the purchase or
repurchase or any contract to purchase or repurchase is made.
Payment for any redemption, purchase or repurchase may be made in
cash or, except to the extent prohibited by the laws of any
jurisdiction in which Shares are registered for sale, in other
property, or any combination thereof. The composition of any
such payment shall be determined by the Trust in its sole
discretion, and the Trust shall have no obligation to effect a
pro rata division of cash or other property in making any such
payment. In no event shall the Trust be liable for any delay of
any other person in transferring securities or other property
selected for delivery as all or part of any such payment.
Redemption at the Option of the Trust
Section 3. The Trust shall have the right at its option and at
any time to redeem Shares of any Shareholder at the net asset
value thereof as determined in accordance with the Bylaws: (i) if
at such time such Shareholder owns fewer Shares than, or Shares
having an aggregate net asset value of less than, an amount
determined from time to time by the Trustees, in which case the
Trust may redeem all Shares owned by such Shareholder or only so
many of such Shares as may be required to compensate the Trust
for any fee fixed from time to time by the Trustees for the
maintenance of small accounts; (ii) to the extent that such
Shareholder owns Shares of a particular series of Shares equal to
or in excess of a percentage of the outstanding Shares of that
series determined from time to time by the Trustees; (iii) to the
extent that such Shareholder owns Shares of the Trust
representing a percentage equal to or in excess of such
percentage of the aggregate number of outstanding Shares of the
Trust or the aggregate net asset value of the Trust determined
from time to time by the Trustees; (iv) if such Shareholder fails
to supply appropriate personal and tax identification information
requested by the Trust; (v) if such Shareholder fails to meet or
maintain the qualifications for ownership of a particular series
or class; or (vi) if the Trustees determine for any other reason,
in their sole discretion, that the ownership of Shares by a
Shareholder is not in the best interests of the remaining
Shareholders of the Trust or of the applicable series or class.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Compensation
Section 1. 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.
Limitation of Liability
Section 2. 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. The Trustees shall not be responsible or
liable in any event for any neglect or wrongdoing of any officer,
agent, employee, manager or principal underwriter of the Trust,
nor shall any Trustee be responsible for the act or omission of
any other Trustee. The appointment, designation or identification
of a Trustee as an officer of the Trustees or of any committee of
the Trustees, or as an expert with respect to certain matters
(including without limitation identification of a Trustee as an
audit committee financial expert) shall not 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 such appointment, designation or
identification, and no Trustee who has special skills or
expertise or who is appointed, designated of identified as
aforesaid, shall be held to a higher standard of care by virtue
thereof or be limited in any way with respect to any right or
privilege to which such person would otherwise be entitled as a
Trustee hereunder, including without limitation the right of
indemnification. Nothing herein contained shall protect any
Trustee against any liability 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.
ARTICLE VIII
Indemnification
Trustees, Officers, etc.
Section 1. The Trust shall indemnify each of its Trustees and
officers (including persons who serve at the Trusts request as
directors, officers or trustees of another organization in which
the Trust has any interest as a shareholder, creditor or
otherwise) (hereinafter referred to as a Covered Person) against
all liabilities and expenses, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees reasonably incurred by any
Covered Person in connection with the defense or disposition of
any threatened, pending, or contemplated action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative,
or investigative and whether formal or informal before any court
or administrative or legislative or other body, in which such
Covered Person may be or may have been involved as a party or
otherwise or with which such Covered Person may be or may have
been threatened, while in office or thereafter, by reason of
being or having been such a Covered Person except with respect to
any matter as to which such Covered Person shall have been
finally adjudicated in any such action, suit or other proceeding
(a) not to have acted in good faith, (b) not to have acted in the
reasonable belief that such Covered Persons action was in the
best interests of the Trust or at least was not opposed to the
best interests of the Trust, (c) in the case of a criminal
proceeding, to have had reasonable cause to believe his or her
action was unlawful or (d) to be 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 Persons office (each of such exceptions
being referred to hereinafter as Disabling Conduct). Expenses,
including counsel fees so incurred by any such Covered Person
(but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), shall be paid from time to
time by the Trust in advance of the final disposition of any such
action, suit or proceeding upon receipt of an undertaking by or
on behalf of such Covered Person to repay amounts so paid to the
Trust if it is ultimately determined that indemnification of such
expenses is not authorized under this Article, provided, however,
that either (a) such Covered Person shall have provided
appropriate security for such undertaking, (b) the Trust shall be
insured against losses arising from any such advance payments or
(c) either a majority of the disinterested Trustees acting on the
matter (provided that a majority of the disinterested Trustees
then in office act on the matter), or independent legal counsel
in a written opinion, shall have determined, based upon a review
of readily available facts (as opposed to a full trial type
inquiry) that there is reason to believe that such Covered Person
will be found entitled to indemnification under this Article. In
making any such determination, the disinterested Trustees or such
counsel, as the case may be, shall afford the Covered Person a
rebuttable presumption that the Covered Person did not engage in
Disabling Conduct.
Compromise Payment
Section 2. As to any matter disposed of (whether by a
compromise payment, pursuant to a consent decree or otherwise)
without an adjudication by a court, or by any other body before
which the action, suit, or proceeding was brought, that such
Covered Person engaged in Disabling Conduct, indemnification
shall be provided if (a) approved as in the best interests of the
Trust, after notice that it involves such indemnification, by at
least a majority of the disinterested Trustees acting on the
matter (provided that a majority of the disinterested Trustees
then in office act on the matter) upon a determination, based
upon a review of readily available facts (as opposed to a full
trial type inquiry) that such Covered Person did not engage in
Disabling Conduct, or (b) there has been obtained an opinion in
writing of independent legal counsel, based upon a review of
readily available facts (as opposed to a full trial type inquiry)
to the effect that such Covered Person did not engage in
Disabling Conduct. Any approval pursuant to this Section shall
not prevent the recovery from any Covered Person of any amount
paid to such Covered Person in accordance with this Section as
indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have
engaged in Disabling Conduct.
Right Not Exclusive
Section 3. The right of indemnification hereby provided shall
not be exclusive of or affect any other rights to which such
Covered Person may be entitled. As used in this Article VIII,
the term Covered Person shall include such persons heirs,
executors and administrators and a disinterested Trustee is a
Trustee who is not an interested person of the Trust as defined
in Section 2(a)(19) of the 1940 Act (or who has been exempted
from being an interested person by any rule, regulation or order
of the Securities and Exchange Commission) and against whom none
of such actions, suits or other proceedings or another action,
suit or other proceeding on the same or similar grounds is then
or has been pending. Nothing contained in this Article shall
affect any rights to indemnification to which personnel of the
Trust, other than Trustees or officers, and other persons may be
entitled by contract or otherwise under law, nor the power of the
Trust to purchase and maintain liability insurance on behalf of
any such person.
Shareholders
Section 4. In case any Shareholder or former Shareholder shall
be held to be personally liable solely by reason of his or her
being or having been a Shareholder and not because of his or her
acts or omissions or for some other reason, the Shareholder or
former Shareholder (or his or her heirs, executors,
administrators or other legal representative or in the case of a
corporation or other entity, its corporate or other general
successor) shall be entitled to be held harmless from and
indemnified against all loss and expense arising from such
liability, but only out of the assets of the particular series of
Shares of which he or she is or was a Shareholder.
ARTICLE IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable for
Obligations of the Trust; Notice
Section 1. All persons extending credit to, contracting with
or having any claim against the Trust or a particular series of
Shares shall look only to the assets of the Trust or the assets
of that particular series of Shares for payment under such
credit, contract or claim, and neither the Shareholders nor the
Trustees, nor any of the Trusts officers, employees or agents,
whether past, present or future, shall be personally liable
therefor.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever executed or
done by any Trustee, officer, employee or agent on behalf of the
Trust or the Trustees or any of them in connection with the Trust
shall be conclusively deemed to have been executed or done only
in or with respect to such persons capacity as a Trustee,
officer, employee or agent, and such person shall not be
personally liable thereon.
Every note, bond, contract, instrument, certificate or
undertaking executed on behalf of the Trust by any Trustee,
officer, employee or agent of the Trust shall give notice that
this Declaration of Trust is on file with the Secretary of State
of The Commonwealth of Massachusetts and shall recite that the
same was executed by them on behalf of the Trust in their
capacity as Trustees, officers, employees or agents of the Trust
and not individually and that the obligations of such instrument
are not binding upon any of them or the Shareholders individually
but are binding only upon the assets and property of the Trust,
and may contain such further recitals as the person so executing
may deem appropriate, but any omission of such notice or recitals
shall not operate to bind any such Trustee, officer, employee or
agent or the Shareholders individually.
Trustees Faith Actions Binding; Expert Advice; No Bond or Surety
Section 2. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested.
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
taken in accordance with such advice or for failing to follow
such advice. The Trustees shall not be required to give any bond
as such, nor any surety if a bond is required.
Liability of Third Persons Dealing with Trustee
Section 3. No person dealing with the Trustees shall be
bound to make any inquiry concerning the validity of any
transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the
Trust or upon its order.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust
and each series and class shall continue without limitation of
time. The Trust or any series or class of any series may be
terminated at any time (i) by the Trustees by written notice to
the Shareholders of the Trust or to the Shareholders of the
particular series or class, as the case may be, or (ii) by the
affirmative vote of the lesser of (1) more than 50% of the
outstanding Shares of each series or class entitled to vote, or
(2) 67% or more of the Shares of each series or class entitled to
vote and present at a meeting called for this purpose if more
than 50% of the outstanding Shares of each series or class
entitled to vote are present at the meeting in person or by
proxy. Upon termination of the Trust or of any series or class,
after paying or otherwise providing for all charges, taxes,
expenses and liabilities, whether due or accrued or anticipated,
of the Trust, or of the particular series or class, as may be
determined by the Trustees, the Trust shall in accordance with
such procedures as the Trustees consider appropriate reduce the
remaining assets of the Trust, or of the particular series or
classes, as the case may be, to distributable form in cash or
shares or other property, or any combination thereof, and
distribute the proceeds to the Shareholders of the Trust or of
the particular series or class, ratably according to the number
of Shares of such series or class held by the several
Shareholders of such series or class on the date of termination,
except to the extent otherwise required or permitted by the
preferences and special or relative rights and privileges of any
classes of Shares of that series or class.
Merger, Consolidation, Sale of Assets and Other Reorganizations
Section 5. Except as otherwise required by applicable law,
the Trustees may, without Shareholder approval, authorize the
Trust or any series or class to merge, consolidate or reorganize
with any other entity (including another series or class of the
Trust), or to sell or exchange all or substantially all of the
assets of the Trust or of any series or class, in each case upon
such terms and for such consideration as they may determine to be
in the best interests of the Trust or of the particular series or
class. The authority provided by this Section shall be in
addition to the powers granted to the Trustees under any other
provision of this Declaration of Trust.
Filing and Copies, References, Headings
Section 6. 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 State of The Commonwealth of
Massachusetts and with the Boston City Clerk, as well as any
other governmental office where such filing may from time to time
be required. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any
such amendments have been made and as to any matters in
connection with the Trust hereunder, and, with the same effect as
if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any
such amendments. In this instrument and in any such amendment,
references to this instrument and all expressions like herein,
hereof and hereunder shall be deemed to refer to this instrument
as amended or affected by any such amendments. Headings are
placed herein for convenience of reference only and shall not be
taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. This instrument may
be executed in any number of counterparts each of which shall be
deemed an original.
Applicable Law
Section 7. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to
be governed by and construed and administered according to the
laws of said Commonwealth. The Trust shall be of the type
commonly called a Massachusetts business trust and, without
limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a trust.
Amendments
Section 8. This Declaration of Trust may be amended at any
time by an instrument in writing signed by a majority of the then
Trustees when authorized to do so by a vote of the Shareholders,
provided that Shareholder authorization shall not be required in
the case of any amendment (i) having the purpose of changing the
name of the Trust or of supplying any omission, curing any
ambiguity or curing, correcting or supplementing any defective or
inconsistent provision contained herein or (ii) which is
determined by the Trustees in their sole discretion not to have a
material adverse effect on the Shareholders of any series or
class of Shares.
IN WITNESS WHEREOF, the undersigned, being a majority of the
Trustees of the Trust, have hereunto set their hands and seals in
the City of Boston, Massachusetts for themselves and their
assigns, as of the day and year first above written.
/s/ Xxxxxxx Xxxxxx /s/ Xxxx X. Xxxx
Xxxxxxx Xxxxxx
/s/ Xxxx Xxxxxxx
Xxxx X. Xxxx
/s/ Xxxx X. Xxxxxx
Xxxx Xxxxxxx
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx, III
Xxxxxxx X. Xxxxxx
Xxxxxx Xxxxxx, III
/s/ Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
/s/ W. Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxxxx
W. Xxxxxx Xxxxxxxx
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
Boston, March 21, 2014
Then personally appeared each of the above named
Trustees of Xxxxxx Europe Equity Fund and acknowledged the
foregoing instrument to be his or her free act and deed, before
me,
/s/ J.
ScottHarris
Notary Public
My Commission
Expires: August 29, 2019
The address of the Trust is Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
ADDENDUM
The individuals listed on the signature page represent all of
the members of the Board of Trustees of the Trust. The business
address for each Trustee is Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX
00000.
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