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EXHIBIT 1(d)
CENTERLAND FUND
AMENDMENT NO. 3 TO AGREEMENT AND DECLARATION OF TRUST
WHEREAS, by instrument entitled "Centerland Fund," an Agreement and
Declaration of Trust dated July 15, 1982 (the "Declaration of Trust"),
Centerland Fund (the "Trust") was formed to carry on the business of an
investment company having various series;
WHEREAS, as provided in Section 7.3 of the Declaration of Trust, its
provisions may be amended at any time by an instrument in writing signed by an
officer of the Trust pursuant to the vote of a majority of the Trustees (when
authorized to do so by the vote of Unitholders holding a majority of the Units
entitled to vote);
WHEREAS, on October 17, 1990, the Trustees approved a proxy statement
wherein was contained the following instruments; and
WHEREAS, on November 30, 1990, the Unitholders of each of the existing
portfolios ("Series") heretofore established and designated and now existing,
approved the following amendments:
Now, therefore, the Declaration of Trust is hereby amended as follows,
effective immediately upon the filing of this instrument at the office of the
Secretary of the Commonwealth of Massachusetts as required by Chapter 182,
Section 2 of the Massachusetts General Laws, as amended.
1. Section 1.2 of the Declaration of Trust is amended by revising
paragraphs (c) and (d) thereof and by adding new paragraph (j) thereto, said
paragraphs (c), (d) and (j) to read as follows:
(c) "Units" refers to the transferable units of interest
into which the beneficial interest in the Trust or any Portfolio of the
Trust or any Class within any Portfolio (as the context may require)
shall be divided from time to time; and the word "Unit" shall be
synonymous with the word "share" in any context in which such latter
word has a generally understood meaning (as, for example, in the phrase
"share dividend");
(d) "Portfolio" refers to each Series of Units that has been
or may be established and designated under or in accordance with the
provisions of Article IV:
(j) "Class" refers to any class of Units within a Portfolio,
which Class is or has been established within such Portfolio under or in
accordance with the provisions of Article IV.
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2. Section 3.2 of the Declaration of Trust, describing Powers of
Trustees, is amended by adding the following new paragraph (n) after existing
paragraph (m) to read as follows:
(n) Service and Administration Plans. To adopt on behalf of
the Trust, any Portfolio or Class of any Portfolio (i) a plan to assist
institutional Unit owners of record in the administration of the
accounts of their customers who are beneficial owners of such Units
("Administration Plan") and agreements related thereto and to make
payments pursuant to said Administration Plan and/or (ii) a plan to
assist institutional Unit owners of record in providing support
services to their customers who are beneficial owners of such units
("Service Plan") and agreements related thereto and to make payments
pursuant to said Service Plan. Any Administration Plan or Service
Plan and agreements related thereto may be so adopted pursuant to the
terms of Rule 12b-1 or any other applicable rule under the 0000 Xxx.
3. The introductory paragraph and paragraphs (a), (c) and (d) and
the final paragraph of Section 3.3 dealing with Certain Contracts are amended
to read as follows:
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, ("Contracting Party") to provide for the performance and
assumption of some or all of the following services, duties and
responsibilities to, for or of the Trust, any Portfolio, any Class and/or the
Trustees, and to provide for the performance and assumption of such other
services, duties and 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 Portfolio of the Trust (as that phrase is used 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;
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(c) Distribution. To distribute the Units of the Trust, to be
Principal Underwriter of such Units, and/or to act as agent of the
Trust, in the sale of Units and the acceptance or rejection of orders
for the purchase of Units, and to provide distribution services and
support services pursuant to Administration Plans and Service Plans,
respectively;
(d) Custodian and Depository. To act as depository for and to
maintain custody of the property of the Trust and each Portfolio and
accounting records in connection therewith;
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The fact that:
(i) any of the Unitholders, 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 Unitholder or has an interest in the 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 has 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, any Portfolio
or Class of Units and/or the Trustees or disqualify any Unitholder, Trustee or
officer of the Trust from voting upon or executing the same or create any
liability or accountability to the Trust, any Portfolio or Class of Units or its
Unitholders, 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 Unitholders entitled to
vote thereon and the
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contract involved is specifically approved in good faith by vote of the
Unitholders, 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
Unitholders.
4. Section 3.4 of the Declaration of Trust is amended in its
entirety to read as follows:
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 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 Portfolios (or Classes 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 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,
Unitholder 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. Allocation of expenses
among separate Portfolios or among separate Classes within any Portfolio
shall be made in an equitable and nondiscriminatory manner, with each
Class bearing only expenses relating to its Units and an allocable share
of Portfolio expenses in accordance with such policies as may be
established by the Trustees from time to time and as are not
inconsistent with the provisions of this Declaration of Trust or of any
applicable document filed by the Trust with the Securities and Exchange
Commission under the 1940 Act or with the Internal Revenue Service under
the Internal Revenue Code of 1986, as amended. 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.
5. Sections 4.1, 4.2 and 4.3 of the Declaration of Trust amended
in their entirety to read as follows:
Section 4.1 Description of Units. The beneficial interest in the
Trust shall be divided into Units, each Unit having a par value of .001
representing interests in such one or more Portfolios (including without
limitation the Portfolios specifically established and designated in
Section 4.2) as the
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Trustees from time to time deem necessary or desirable. The Trustees shall have
authority to establish and designate such Portfolios and to fix and determine
the relative rights and preferences as between the different Units (and Classes
thereof) as to right of redemption and the price, obligations to make certain
payments as provided in an Administration Plan or Service Plan that may be
applicable to the different Units (and Classes thereof), terms and manner of
redemption, special and relative rights as to dividends and other distributions
and on liquidation, sinking or purchase fund provisions, reinvestment, exchange
or conversion rights, and conditions under which the several Portfolios and
Classes shall have separate voting rights or no voting rights.
The number of authorized Units of the Trust and of each Portfolio (and
of each Class thereof) that may be issued is unlimited, and the Trustees may
issue Units of any Portfolio (or of any Class thereof) for such consideration
and on such terms as they may determine (or for no consideration if pursuant to
a Unit dividend or split-up), all without action or approval of the
Unitholders. All Units 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 Units or any Units
previously issued and reacquired of any Portfolio or Class thereof into one or
more other Portfolios (or Classes within the same or one or more other
Portfolios) that may be established and designated from time to time. The
Trustees may hold as treasury Units (of the same or some other Portfolio or
Class thereof), reissue for such consideration and on such terms as they may
determine, or cancel, at their discretion from time to time, any Units of any
Portfolio (or Class thereof) reacquired by the Trust.
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
Units entitled to be treated as such, to the extent provided or referred to in
Section 5.3.
The establishment and designation of any Portfolio or Class 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, payment obligations
with respect to Administration and Service Plan(s), if any, and preferences of
such Portfolio 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 Units outstanding of any particular Portfolio or Class previously
established and designated the Trustees may, by an
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instrument executed by a majority of their number, abolish that Portfolio or
Class and the establishment and designation thereof. Each instrument referred to
in this paragraph 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
Units of any Portfolio or Class 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 Units of any
Portfolio or Class 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 Units of such Portfolio or Class generally.
Section 4.2 Establishment and Designation of Portfolios. Without
limiting the authority of the Trustees set forth in Section 4.1 to establish and
designate any further Portfolios, it is hereby confirmed that the Trustees have
heretofore established and designated, and there are presently outstanding Units
of, the following two Portfolios: -- the Short-Term Diversified Assets Portfolio
and the Short-Term U.S. Treasury Portfolio (each heretofore sometimes referred
to as a "Series," but herein and hereafter called a "Portfolio" and collectively
herein the "Existing Portfolios"). The Units of the Existing Portfolios and such
Classes thereof and any Unit of any further Portfolios and Classes thereof that
may from time be established and designated by the Trustee shall (unless the
Trustees otherwise determine with respect to some further Portfolio or Class at
the time of establishing and designating the same) have the following relative
rights and preferences:
(a) Asset Belonging to Portfolios. All consideration received by the
Trust for the issue or sale of Units of a particular Portfolio, 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 Units
of that Portfolio and shall irrevocably belong to the Portfolio for all
purposes, subject only to the rights of creditors, 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 allocated to that Portfolio as provided in
the following sentence, are herein referred to as
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"assets belonging to" that Portfolio. 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 Portfolio
(collectively "General Items"), the Trustees shall allocate such General items
to and among any one or more of the Portfolios 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 Portfolio belong to that Portfolio. Each such allocation by the
Trustees shall be conclusive and binding upon the Unitholders of all Portfolios
for all purposes.
(b) Liabilities Belonging to Portfolios and Classes. The assets
belonging to each particular Portfolio shall be charged with the liabilities of
the Trust in respect of that Portfolio and all expenses, costs, charges and
reserves attributable to that Portfolio, and any general liabilities, expenses,
costs, charges or reserves of the Trust which are not readily identifiable as
belonging to any particular Portfolio shall be allocated and charged by the
Trustees to and among any one or more of the Portfolios 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.
Notwithstanding the provisions of the preceding paragraph, (i) Units of
any Class of each Portfolio shall bear the expense of payments under any
agreements entered into by or on behalf of the Trust with organizations that
provide for services to beneficial owners of Units of that Class, and (ii)
Units of any Class of each Portfolio shall bear the expense of payments under
any agreements relating to the provision of distribution assistance or services
under any distribution plan with respect to existing or prospective beneficial
owners of the Unites of that Class. Expenses described in the preceding
sentence are sometimes referred to herein as "Special Class Expenses."
The liabilities, expenses, costs, charges and reserves allocated and so
charged to a Portfolio or Class are herein referred to as "liabilities
belonging to" that Portfolio or Class. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive and
binding upon the holders of all Units of all Portfolios and of all Classes.
Any creditor of any Portfolio may look only to the assets belonging to
that Portfolio to satisfy such creditor's claim.
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
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determination and allocation shall be conclusive and binding upon the
Unitholders.
(c) Dividends. Dividends and distributions on Units of a particular
Portfolio or Class 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 Units of that Portfolio or Class, from such of the
income and capital gains, accrued or realized, from the assets belonging to
that Portfolio (which shall be allocated among Units of all Classes of the
Portfolio on a pro rata basis), as the Trustees may determine, after providing
for actual and accrued liabilities belonging to that Portfolio and/or to any
Class thereof (including without limitation the allocation to a Class of
Special Class Expenses relating to that Class). All dividends and
distributions on Units of a particular Class of a Portfolio shall be
distributed pro rata to the holders of that Class of that Portfolio in
proportion to the number of Units of that Class of that Portfolio 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 Units as to which the Unitholder'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 Units of the same 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 Unitholder of the mode of
the making of such dividend or distribution to that Unitholder. Any such
dividend or distribution paid in Units will be paid at the net asset value
thereof as determined in accordance with subsection (h) of Section 4.2.
The Trust intends to qualify as a "regulated investment company" under
the Internal Revenue Code of 1954, as amended, or any successor or comparable
statute thereto, and regulations promulgated thereunder. Inasmuch as the
computation of net income and gains for Federal income tax purposes may vary
from the computation thereof on the books of the Trust, the Board of Trustees
shall have the power, in its sole discretion, to distribute in any fiscal year
as dividends, including dividends designated in whole or in part as capital
gains distributions, amounts sufficient, in the opinion of the Board of
Trustees, to enable the Trust to qualify as a regulated investment company and
to avoid liability of the Trust for Federal income tax in respect of that year.
However, nothing in the foregoing shall limit the authority of the Board of
Trustees to make distributions greater than or less than the amount necessary
to qualify as a regulated
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investment company and to avoid liability of the Trust for such tax.
(d) Liquidation. In the event of the liquidation or dissolution of
the Trust or of any Portfolio thereof, the Unitholders of each affected
Portfolio and each Class thereof shall be entitled to receive, when and as
declared by the Trustees, the excess of the assets belonging to that Portfolio
over the liabilities belonging to that Portfolio and Class thereof (reduced as
to Units of a Class by any applicable Special Class Expenses, which shall be
allocated as provided in Subsection (b) above). The assets so distributable to
the Unitholders of any particular Class of a particular Portfolio shall be
distributed among such Unitholders in proportion to the number of Units of that
Class of that Portfolio held by them and recorded on the books of the Trust.
The liquidation of any particular Portfolio or Class may be authorized by vote
of a majority of the Trustees then in office subject to the approval of a
majority of the outstanding voting securities, as defined in the 1940 Act,
(Units) of that Portfolio or Class.
(e) Voting. On each matter submitted to a vote of the Unitholders,
each holder of a Unit shall be entitled to one vote for each such Unit standing
in his name on the books of the Trust irrespective of the Portfolio or Class
thereof and all Units of all Portfolios and Classes shall vote as a single
class ("Single Class Voting"); provided, however, that (a) as to any matter
with respect to which a separate vote of any Portfolio or Class is required by
the 1940 Act or would be required under the Massachusetts Business Corporation
Law if the Trust were a Massachusetts business corporation, or is required by a
Plan applicable to such Class, such requirements as to a separate vote by that
Portfolio or Class shall apply in lieu of Single Class Voting as described
above; (b) in the event that the separate vote requirements referred to in (a)
above apply with respect to more than one Portfolio or Class, then subject to
(c) below, the Units of all such applicable Portfolios or Classes shall vote as
a single class; (c) as to any matter which does not affect the interest of a
particular Portfolio or Class, only the holders of Units of the one or more
affected Portfolios or Classes shall be entitled to vote; and (d) the
provisions of the following paragraph shall apply.
On any matter that pertains to any Agreement or to any special Class
Expenses with respect to any Portfolio which matter is submitted to a vote of
Unitholders, only Units of the affected class of that Portfolio shall be
entitled to vote (except where otherwise required by law or permitted by the
Board of Trustees acting in its sole discretion) even though the matter is
submitted to a vote of the Unitholders of any other Class or Portfolio.
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(f) Redemption by Unitholder. Each holder of Units of a particular
Class of a particular Portfolio 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 Units of that Class of that
Portfolio at a redemption price equal to the net asset value per Unit of that
Class of that Portfolio next determined in accordance with subsection (h) of
this Section 4.2 after the Units are properly tendered for 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
make payment wholly or partly in securities or other assets belonging to the
Portfolio of which the Units 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 the holders of Units of any
Portfolio to require the Trust to redeem Units of that Portfolio during any
period or at any time when and to the extent permissible under the 1940 Act.
(g) Redemption by Trust. Each Unit of each Class of each Portfolio
that has been established and designated is subject to redemption by the Trust
at the redemption price which would be applicable if such Unit was then being
redeemed by the Unitholder pursuant to subsection (f) of this Section 4.2 at
any time, if the Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to the holders of that Class or
of that Portfolio, and upon such redemption the holders of the Units so
redeemed shall have no further right with respect thereto other than to receive
payment of such redemption price. In addition, the Trustees, in their sole
discretion, may cause the Trust to redeem all of the Units of one or more
Portfolio or Class held by (a) any Unitholder if the value of such Units is
less than the minimum amount established from time to time by the Trustees or
(b) all Unitholders of a Class or Portfolio if the value of such Units held by
all Unitholders is less than the minimum amount established from time to time
by the Trustees.
(h) Net Asset Value. The net asset value per Unit of any Portfolio
(or Class thereof) shall be the quotient obtained by dividing the value of the
net assets of that Portfolio or Class (being the value of the assets belonging
to that Portfolio less the liabilities belonging to that Portfolio or Class,
including without limitation any Special Class Expenses allocable to that
Class) by the total number of Units of that Portfolio (or Class thereof)
outstanding, all determined in accordance with the
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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 Unit of
any Portfolio or Class 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 Portfolio or Class as
dividends payable in additional Units of the Portfolio or Class at the
designated constant dollar amount and for the handling of any losses
attributable to that Portfolio or Class. Such procedures may provide that in the
event of any loss each Unitholder shall be deemed to have contributed to the
capital of the Trust attributable to that Portfolio or Class his pro rata
portion of the total number of Units required to be cancelled in order to permit
the net asset value per Unit of that Portfolio or Class to be maintained, after
reflecting such loss, at the designated constant dollar amount. Each Unitholder
of the Trust shall be deemed to have agreed, by his investment in the Trust, to
make the contribution referred to in the preceding sentence in the event of any
such loss.
(i) Transfer. All Units of each particular Portfolio shall be
transferable, but transfers of Units of a particular Portfolio will be recorded
on the Unit transfer records of the Trust applicable to that Portfolio only at
such times as Unitholders shall have the right to require the Trust to redeem
Units of that Portfolio and at such other times as may be permitted by the
Trustees.
(j) Equality. All Units of each particular Class of each
particular Portfolio that has been established and designated shall represent
an equal proportionate interest in the assets belonging that Portfolio (subject
to the liabilities belonging to that particular Class of that particular
Portfolio), and each Unit of any particular Class of a particular Portfolio
shall be equal to each other Unit of that particular Class of that particular
Portfolio; 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 Units of the same
Portfolio (or Class thereof). The Trustees may from time to time divide or
combine the Units of any particular Portfolio into a greater or lesser number
of Units of that Portfolio without thereby changing the proportionate
beneficial interest in the assets belonging to that Portfolio or in any way
affecting the rights of Units of any other Portfolio.
(h) Fractions. Any fractional Unit of any Class of any Portfolio,
if any such fractional Unit is outstanding, shall carry proportionately all the
rights and obligations of a whole
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Unit of that Class of that Portfolio, including with respect to voting, receipt
of dividends and distributions, redemption of Units, and liquidation of the
Trust or of that Portfolio.
Section 4.3 Ownership of Units. The ownership of Units 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 Units of each
Portfolio and each separate Class thereof that has been established and
designated. No certificates certifying the ownership of Units 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 Unit
certificates, the use of facsimile signatures, the transfer of Units 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 Unitholders and as to the number of Units of each Portfolio held from
time to time by each such Unitholder.
6. Sections 5.1 and 5.2 of the Declaration of Trust are amended to
read as follows:
Section 5.1 Voting Powers. The Unitholders 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 Unitholder approval is required by the 1940 Act, (iii)
with respect to any termination or reorganization of the Trust or any Portfolio
to the extent and as provided in Section 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 Portfolio or Class thereof or the Unitholders (provided,
however, that a Unitholder of a particular Portfolio or Class thereof shall not
be entitled to maintain a derivative or class action on behalf of any other
Portfolio or Class (or Unitholder of any other Portfolio or Class 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, a
Service Plan or any registration statement of the Trust filed 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 any Trustee or Trustees. Units may be voted in person or by proxy.
A proxy with respect to Units 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
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by or on behalf of a Unitholder shall be deemed valid unless challenged at or
prior to its exercise and the burden of proving invalidity shall rest on the
challenger. Until Units are issued, the Trustees may exercise all rights of
Unitholders and may take any actions required by law, this Declaration of Trust
or the By-Laws to be taken by Unitholders.
Section 5.2 Meetings. Meetings of the Unitholders including
meetings involving only the holders of Units of one or more but less than all
Portfolios or Classes thereof) may be called by the Trustees from time to time
to be held at such place within or without The Commonwealth of Massachusetts,
and on such date, as may be designated in the call thereof for the purpose of
taking action upon any matter permitting or requiring the vote or authority of
the Unitholders as provided in Section 5.1. Written notice of any such meeting
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 Unitholder entitled to vote at such meeting
at the Unitholder's address as it appears on the records of the Trust. If the
Trustees shall fail to call or give notice of any meeting of Unitholders
(including a meeting involving only the holders of Units of one or more but
less than all Portfolios or Classes thereof) for a period of 75 days after
written request by Unitholders holding at least a majority of the Units then
outstanding of any Portfolio or Class entitled to vote upon any matter
requiring action by the Unitholders as provided herein that a meeting be called
to consider such matter, then Unitholders holding at least a majority of the
Units then outstanding of such Portfolio or Class 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 5.5 Action by Written Consent. Subject to the provisions of
the 1940 Act and other applicable law, any action taken by Unitholders may be
taken without a meeting if holders of a majority of units 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 Unitholders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Unitholders.
7. Sections 7.1 and 7.2 of the Declaration of Trust are amended to
read as follows:
Section 7.1 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The Trust
may be terminated at any time by a
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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,
(Units) of each Portfolio voting separately by Portfolio.
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 Unitholders, in conformity with the
provisions of subsection (d) of Section 4.2.
Section 7.2. Reorganization. The Trustees may sell,convey and
transfer the assets of the Trust, or the assets belonging to any one or more
Portfolios, 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 Portfolio of the Trust, in exchange for cash,
shares or other securities (including, in the case of a transfer to another
Portfolio of the Trust, Units of such other Portfolio) with such transfer being
made subject to, or with the assumption by the transferee of, the liabilities
belonging to each Portfolio the assets of which are so transferred; provided,
however, that no assets belonging to any particular Portfolio 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 securities, as defined in the 1940 Act,
(Units) of that Portfolio. Following such transfer, the Trustees shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities belonging to and any other differences among the various
Portfolios the assets belonging to which have so been transferred) among the
Unitholders of the Portfolio 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.
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8. Section 7.3 of the Declaration of Trust, dealing with
amendments to the Declaration of Trust, is amended by adding the following new
sentence at the end thereof:
By vote of a majority of the Trustees at any time, without the
necessity of authorization by Unitholders, the Trustees may
cause this Declaration of Trust to be restated in its entirety
to reflect all previous amendments made pursuant to this
Section 7.3. Such restatement may include such editorial
changes, not making any substantive change, as the Trustees may
determine to be appropriate.
In witness whereof I set my hand this 2nd day of January 1991.
/s/ SIGNATURE
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Title: President
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Dated: 1/2/91
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