AMENDMENT NO. 5 TO THE
AGREEMENT AND DECLARATION OF TRUST
OF COLONIAL TRUST II
AGREEMENT AND DECLARATION OF TRUST made at Boston,
Massachusetts, this 15th day of November, 1991 by the Trustees
hereunder, and by the holders of shares of beneficial interest to
be issued hereunder as hereinafter provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business
of an investment company; and
WHEREAS, the 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 pro rata benefit of the holders from time
to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Name
Section 1. This Trust shall be known as Colonial Trust
II and the Trustees shall conduct the business of the Trust under
that name or any other name as they may from time to time
determine.
Definitions
Section 2. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business
trust established by this Agreement and Declaration of Trust, as
amended from time to time;
(b) "Trustees" refers to the Trustees of the Trust
named herein or elected in accordance with Article IV;
(c) "Shares" means the equal proportionate
transferable units of interest into which the beneficial interest
in the Trust shall be divided from time to time or, if more than
one series of Shares is authorized by the Trustees, the equal
proportionate units into which each series of Shares shall be
divided from time to time or, if more than one class of Shares of
any series is authorized by the Trustees, the equal proportionate
units into which each class of such series of Shares shall be
divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company
Act of 1940 and the Rules and Regulations thereunder, all as
amended from time to time;
(f) The terms "Affiliated Person," "Assignment,"
"Commission," "Interested Person," "Principal Underwriter" and
"Majority Shareholder Vote" (the 67% or 50% requirement of the
third sentence of Section 2(a)(42) of the 1940 Act, whichever may
be applicable) shall have the meanings given them in the 1940
Act;
(g) "Declaration of Trust" shall mean this Agreement
and Declaration of Trust as amended or restated from time to
time; and
(h) "By-Laws" shall mean the By-Laws of the Trust as
amended from time to time.
ARTICLE II
PURPOSE
The purpose of the Trust is to provide investors a managed
investment primarily in securities, commodities and debt
instruments.
ARTICLE III
SHARES
Division of Beneficial Interest
Section 1. The Shares of the Trust shall be issued in
one or more series as the Trustees may, without Shareholder
approval, authorize. 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 or
special or relative rights or privileges (including conversion
rights, if any) as the Trustees may determine and as are not
inconsistent with any provision of this Declaration of Trust.
Each series shall be preferred over all other series in respect
of the assets allocated to that series. The beneficial interest
in each series shall at all times be divided into Shares, without
par value, each of which shall, except as the Trustees may
otherwise authorize in the case of any series that is divided
into two or more classes, represent an equal proportionate
interest in the series with each other Share of the same series,
none having priority or preference over another. The number of
Shares authorized shall be unlimited, and the Shares so
authorized may be represented in part by fractional shares. The
Trustees may from time to time divide or combine the Shares of
any series or class into a greater or lesser number without
thereby changing the proportionate beneficial interests in the
series or class.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on
the books of the Trust or its transfer or similar agent. No
certificates certifying the ownership of Shares shall be issued
except as the Trustees may otherwise determine from time to time.
The Trustees may make such rules as they consider appropriate for
the issuance of Share certificates, the transfer of Shares and
similar matters. The record books of the Trust as kept by the
Trust or any transfer or similar agent of the Trust, 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.
Investments in the Trust; Assets of the Series
Section 3. The Trustees shall accept investments in the
Trust from such persons and on such terms and, subject to any
requirements of law, for such consideration, which may consist of
cash or tangible or intangible property or a combination thereof,
as they from time to time authorize.
All consideration received by the Trust 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 receive, purchase or subscribe for any additional
Shares or other securities issued by the Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal
property giving only the rights provided in this instrument.
Every Shareholder by virtue of having become a Shareholder shall
be held to have expressly assented and agreed to the terms hereof
and to have become a party hereto. The death of a Shareholder
during the continuance of the Trust shall not operate to
terminate the same nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Trust. Ownership of Shares
shall not entitle the Shareholder to any title in or to the whole
or any part of the Trust property or right to call for a
partition or division of the same or for an accounting, nor shall
the ownership of Shares constitute the Shareholders partners.
Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust, shall have any power to bind personally any
Shareholder, nor except as specifically provided herein to call
upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at
any time personally agree to pay.
ARTICLE IV
THE TRUSTEES
Election
Section 1. The number of Trustees shall be fixed by the
Trustees, except that, subsequent to any sale of Shares pursuant
to a public offering, there shall be not less than three
Trustees. Any vacancies occurring in the Board of Trustees may
be filled by the Trustees if, immediately after filling any such
vacancy, at least two-thirds of the Trustees then holding office
shall have been elected to such office by the Shareholders. In
the event that at any time less than a majority of the Trustees
then holding office were elected to such office by the
Shareholders, the Trustees shall call a meeting of Shareholders
for the purpose of electing Trustees. Each Trustee elected by
the Shareholders or by the Trustees shall serve until the next
meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her
successor, or until he or she sooner dies, resigns or is removed.
The initial Trustees, each of whom shall serve until the first
meeting of Shareholders at which Trustees are elected and until
his or her successor is elected and qualified, or until he or she
sooner dies, resigns or is removed, shall be Xxxx X. XxXxxxx, Xx.
and such other persons as the Trustee or Trustees then in office
shall, prior to any sale of Shares pursuant to a public offering,
appoint. By vote of a majority of the Trustees then in office,
the Trustees may remove a Trustee with or without cause. At any
meeting called for the purpose, a Trustee may be removed, with or
without cause, by vote of the holders of two-thirds of the
outstanding Shares.
Effect of Death, Resignation, etc. of a Trustee
Section 2. The death, declination, resignation,
retirement, removal or incapacity of the Trustees, or any one of
them, shall not operate to annul the Trust or to revoke any
existing agency created pursuant to the terms of this Declaration
of Trust.
Powers
Section 3. Subject to the provisions of this Declaration
of Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient
to carry out that responsibility. Without limiting the
foregoing, the Trustees may adopt By-Laws 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 By-Laws do not reserve that right to the Shareholders;
they may fill vacancies in their number, including vacancies
resulting from increases in 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 appoint an advisory board, the members of
which shall not be Trustees and need not be Shareholders; 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 services 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 depository
or a nominee or nominees or otherwise;
(f) Subject to the provisions of Article III, Section
3, to allocate assets, liabilities 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 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 with other security holders in acting
through a committee, depositary, voting trustee or otherwise, and
in that connection to deposit any security with, or transfer any
security to, any such committee, depositary or trustee, and to
delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee,
depositary or trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust
claims in favor of or against the Trust on 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 of 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, profit-sharing, share bonus, share purchase,
savings, thrift and other retirement, incentive and benefit
plans, trusts and provisions, including the purchasing of life
insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust.
The Trustees shall not in any way be bound or limited by any
present or future law or custom in regard to investments by
Trustees. Except as otherwise provided herein or from time to
time in the By-Laws, 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 4. The Trustees are authorized to pay or to
cause to be paid out of the principal or income of the Trust, or
partly out of principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes and liabilities incurred
or arising in connection with the Trust, 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
or manager, principal underwriter, auditor, counsel, custodian,
transfer agent, Shareholder services agent and such other agents
or independent contractors, and such other expenses and charges,
as the Trustees may deem necessary or proper to incur, provided,
however, that all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with a particular series of
Shares, as determined by the Trustees, shall be payable solely
out of the assets of that series.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of each series of
Shares and of the Trust shall at all times be considered as
vested in the Trustees.
Advisory, Management and Distribution
Section 6. Subject to a favorable Majority Shareholder
Vote, the Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory and/or management
services with Colonial Management Associates, Inc., a
Massachusetts corporation, or any other corporation, trust,
association or other organization (the "Adviser"), every such
contract to comply with such requirements and restrictions as may
be set forth in the By-Laws; and any such contract may contain
such other terms interpretive of or in addition to said
requirements and restrictions as the Trustees may determine,
including, without limitation, authority to determine from time
to time what investments shall be purchased, held, sold or
exchanged and what portion, if any, of the assets of the Trust
shall be held uninvested, and to make changes in the Trust's
investments. The Trustees may also, at any time and from time to
time, contract with the Adviser or any other corporation, trust,
association or other organization, appointing it exclusive or
nonexclusive distributor or principal underwriter for the Shares,
every such contract to comply with such requirements and
restrictions as may be set forth in the By-Laws; and any such
contract may contain such other terms interpretive of or in
addition to said requirements and restrictions as the Trustees
may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of
the Trust is a shareholder, director, officer, partner, trustee,
employee, manager, adviser, principal underwriter or distributor
or agent of or for any corporation, trust, association or other
organization, or of or for any parent or affiliate of any
organization, with which an advisory or management contract, or
principal underwriter's or distributor's contract, or transfer,
shareholder services or other agency contract may have been or
may hereafter be made, or that any organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in the
Trust, or that
(ii) any corporation, trust, association or other
organization with which an advisory or management contract or
principal underwriter's or distributor's contract, or transfer,
Shareholder services or other agency contract may have been or
may hereafter be made also has an advisory or management
contract, or principal underwriter's or distributor's contract,
or transfer, shareholder services 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. The Shareholders shall have power to vote
only (i) for the election of Trustees as provided in Article IV,
Section 1, (ii) with respect to any Adviser as provided in
Article IV, Section 6, (iii) with respect to any termination of
this Trust to the extent and as provided in Article IX, Section
4, (iv) with respect to any amendment of this Declaration of
Trust to the extent and as provided in Article IX, Section 7, (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 not be brought or maintained
derivatively or as a class action on behalf of the Trust or the
Shareholders, and (vi) with respect to such additional matters
relating to the Trust as may be required by law, this Declaration
of Trust, the By-Laws 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.
Notwithstanding any other provision of this Declaration of Trust,
on any matter submitted to a vote of Shareholders, all Shares of
the Trust then entitled to vote shall be voted in the aggregate
as a single class without regard to series or class; 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
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, then 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 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.
Voting Power and Meetings
Section 2. Meetings of Shareholders of the Trust or of
any series or class may be called by the Trustees or such other
person or persons as may be specified in the By-Laws and held
from time to time for the purpose of taking action upon any
matter requiring the vote or the authority of the Shareholders of
the Trust or any series or class as herein provided or upon any
other matter deemed by the Trustees to be necessary or desirable.
Meetings of Shareholders of the Trust or of any series or class
shall be called by the Trustees or such other person or persons
as may be specified in the By-Laws upon written application. The
Shareholders shall be entitled to at least seven days' written
notice of any meeting of the Shareholders.
Quorum and Required Vote
Section 3. Thirty percent (30%) of the Shares entitled
to vote shall be a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or
of this Declaration of Trust permits or requires that holders of
any series or class shall vote as a series or class, then thirty
percent (30%) 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, however, 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 this Declaration of Trust or the By-
Laws, 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 permits or
requires that the holders of any series or class shall vote as a
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 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.
Additional Provisions
Section 5. The By-Laws may include further provisions
for Shareholders' votes and meetings and related matters.
ARTICLE VI
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES,
AND DETERMINATION OF NET ASSET VALUE
Distributions
Section 1. The Trustees may, but need not, each year
distribute to the Shareholders of each series or class such
income and gains, accrued or realized, as the Trustees may
determine, after providing for actual and accrued expenses and
liabilities (including such reserves as the Trustees may
establish) determined in accordance with good accounting
practices. The Trustees shall have full discretion to determine
which items shall be treated as income and which items as capital
and their determination shall be binding upon the Shareholders.
Distributions of each year's income of each series, if any be
made, may be made in one or more payments, which shall be in
Shares, in cash or otherwise and on a date or dates and as of a
record date or dates determined by the Trustees. At any time and
from time to time in their discretion, the Trustees may
distribute to the Shareholders of any one or more series or
classes as of a record date or dates determined by the Trustees,
in Shares, in cash or otherwise, all or part of any gains
realized on the sale or disposition of property of the series or
otherwise, or all or part of any other principal of the Trust
attributable to the series. In the case of any series not
divided into two or more classes of Shares, each distribution
pursuant to this Section 1 shall be made ratably according to the
number of Shares of the series held by the several Shareholders
on the applicable record date thereof, provided that no
distribution need be made on Shares purchased pursuant to orders
received, or for which payment is made, after such time or times
as the Trustees may determine. In the case of any series divided
into two or more classes, each distribution pursuant to this
Section 1 may be made in whole or in such parts as the Trustees
may determine to the Shareholders of any one or more classes, and
the distribution to the Shareholders of any class shall be made
ratably according to the number of Shares of the class (but need
not be made ratably according to the number of Shares of the
series, considered without regard to class) held by the several
Shareholders on the record date thereof, provided that no
distribution need be made on Shares purchased pursuant to orders
received, or for which payment is made, after such time or times
as the Trustees may determine. Any such distribution paid in
Shares will be paid at the net asset value thereof as determined
in accordance with Section 7 of this Article VI.
Redemptions and Repurchases
Section 2. Any holder of Shares of the Trust may by
presentation of a written request, together with his or her
certificates, if any, for such Shares, in proper form for
transfer, at the office of the Trust or at a principal office of
a transfer agent appointed by the Trust, redeem his or her Shares
for the net asset value thereof determined and computed in
accordance with the provisions of this Section 2 and the
provisions of Section 7 of this Article VI.
Upon receipt by the Trust or its transfer agent of such
written request for redemption of Shares, such Shares shall be
redeemed at the net asset value per share of the appropriate
series next determined after such Shares are tendered in proper
order for transfer to the Trust or determined as of such other
time fixed by the Trustees as may be permitted or required by the
1940 Act, provided that no such tender shall be required in the
case of Shares for which a certificate or certificates have not
been issued, and in such case such Shares shall be redeemed at
the net asset value per share of the appropriate series next
determined after such request has been received or determined at
such other time fixed by the Trustees as may be permitted or
required by the 0000 Xxx.
The obligation of the Trust to redeem its Shares of each
series or class as set forth above in this Section 2 shall be
subject to the condition that during any time of emergency, as
hereinafter defined, such obligation may be suspended by the
Trust by or under authority of the Trustees for such period or
periods during such time of emergency as shall be determined by
or under authority of the Trustees. If there is such a
suspension, any Shareholder may withdraw any demand for
redemption and any tender of Shares which has been received by
the Trust during any such period and any tender of Shares, the
applicable net asset value of which would but for such suspension
be calculated as of a time during such period. Upon such
withdrawal, the Trust shall return to the Shareholder the
certificates therefor, if any. For the purposes of any such
suspension, "time of emergency" shall mean, either with respect
to all Shares or any series of Shares, any period during which:
(a) the New York Stock Exchange is closed other than
for customary weekend and holiday closings; or
(b) the Trustees or authorized officers of the Trust
shall have determined, in compliance with any applicable rules
and regulations of the Securities and Exchange Commission, either
that trading on the New York Stock Exchange is restricted, or
that an emergency exists as a result of which (i) disposal by the
Trust of securities owned by it is not reasonably practicable or
(ii) it is not reasonably practicable for the Trust fairly to
determine the current value of its net assets; or
(c) the suspension or postponement of such obligations
is permitted by order of the Securities and Exchange Commission.
The Trust may also purchase, repurchase or redeem
Shares in accordance with such other methods, upon such other
terms and subject to such other conditions as the Trustees may
from time to time authorize 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 in Kind
Section 3. Subject to any generally applicable
limitation imposed by the Trustees, any payment on redemption of
Shares may, if authorized by the Trustees, be made wholly or
partly in kind, instead of in cash. Such payment in kind shall
be made by distributing securities or other property
constituting, in the opinion of the Trustees, a fair
representation of the various types of securities and other
property then held by the series of Shares being redeemed (but
not necessarily involving a portion of each of the series'
holdings) and taken at their value used in determining the net
asset value of the Shares in respect of which payment is made.
Redemptions at the Option of the Trust
Section 4. 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 Section 7 of
Article VI of this Declaration of Trust: (i) if at such time
such Shareholder owns fewer Shares than, or Shares having an
aggregate net asset value of less than, an amount determined from
time to time by the Trustees; or (ii) to the extent that such
Shareholder owns Shares of a particular series of Shares equal to
or in excess of a percentage of the outstanding Shares of that
series (determined without regard to class) determined from time
to time by the Trustees; or (iii) to the extent that such
Shareholder owns Shares of the Trust representing a percentage
equal to or in excess of such percentage of the aggregate number
of outstanding Shares of the Trust or the aggregate net asset
value of the Trust determined from time to time by the Trustees.
Dividends, Distributions, Redemptions and Repurchases
Section 5. No dividend or distribution (including,
without limitation, any distribution paid upon termination of the
Trust or of any series) with respect to, nor any redemption or
repurchase of, the Shares of any series (or of any class) shall
be effected by the Trust other than from the assets of such
series (or of the series of which such class is a part).
Additional Provisions Relating to Redemptions and Repurchases
Section 6. The completion of redemption of Shares shall
constitute a full discharge of the Trust and the Trustees with
respect to such shares, and the Trustees may require that any
certificate or certificates issued by the Trust to evidence the
ownership of such Shares shall be surrendered to the Trustees for
cancellation or notation.
Determination of Net Asset Value
Section 7. The term "net asset value" of the Shares of
each series or class shall mean: (i) the value of all the assets
of such series or class; (ii) less the total liabilities of such
series or class; (iii) divided by the number of Shares of such
series or class outstanding, in each case at the time of each
determination. The "number of Shares of such series or class
outstanding" for the purposes of such computation shall be
exclusive of any Shares of such series or class to be redeemed
and not then redeemed as to which the redemption price has been
determined, but shall include Shares of such series or class
presented for repurchase and not then repurchased and Shares of
such series or class to be redeemed and not then redeemed as to
which the redemption price has not been determined and Shares of
such series or class the sale of which has been confirmed. Any
fractions involved in the computation of net asset value per
share shall be adjusted to the nearer cent unless the Trustees
shall determine to adjust such fractions to a fraction of a cent.
The Trustees, or any officer or officers or agent of this
Trust designated for the purpose by the Trustees, shall determine
the net asset value of the Shares of each series or class, and
the Trustees shall fix the times as of which the net asset value
of the Shares of each series or class shall be determined and
shall fix the periods during which any such net asset value shall
be effective as to sales, redemptions and repurchases of, and
other transactions in, the Shares of such series or class, except
as such times and periods for any such transaction may be fixed
by other provisions of this Declaration of Trust or by the By-
Laws.
In valuing the portfolio investments of any series or class
for determination of net asset value per share of such series or
class, securities for which market quotations are readily
available shall be valued at prices which, in the opinion of the
Trustees, or any officer or officers or agent of the Trust
designated for the purpose by the Trustees, most nearly represent
the market value of such securities, which may, but need not, be
the most recent bid price obtained from one or more of the market
makers for such securities; other securities and assets shall be
valued at fair value as determined by or pursuant to the
direction of the Trustees. Notwithstanding the foregoing, short-
term debt obligations, commercial paper and repurchase agreements
may be, but need not be, valued on the basis of quoted yields for
securities of comparable maturity, quality and type, or on the
basis of amortized cost. In determination of net asset value of
any series or class, dividends receivable and accounts receivable
for investments sold and for Shares sold shall be stated at the
amounts to be received therefor; and income receivable accrued
daily on bonds and notes owned shall be stated at the amount to
be received. Any other assets shall be stated at fair value as
determined by the Trustees or such officer, officers or agent
pursuant to the Trustees' authority, except that no value shall
be assigned to good will, furniture, lists, reports, statistics
or other noncurrent assets other than real estate. Liabilities
of any series or class for accounts payable for investments
purchased and for Shares tendered for redemption and not then
redeemed as to which the redemption price has been determined
shall be stated at the amounts payable therefor. In determining
the net asset value of any series or class, the person or persons
making such determination on behalf of the Trust may include in
liabilities such reserves, estimated accrued expenses and
contingencies as such person or persons may in its, his or their
best judgment deem fair and reasonable under the circumstances.
Any income dividends and gains distributions payable by the Trust
shall be deducted as of such time or times on the record date
therefor as the Trustees shall determine.
The manner of determining the net assets of any series or
class or of determining the net asset value of the Shares of any
series or class may from time to time be altered as necessary or
desirable in the judgment of the Trustees to conform to any other
method prescribed or permitted by any applicable law or
regulation.
Determinations under this Section 7 made in good faith and
in accordance with the provisions of the 1940 Act shall be
binding on all parties concerned.
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. The Trustees shall not be responsible or
liable in any event for any neglect or wrongdoing of any officer,
agent, employee, adviser or principal underwriter of the Trust,
nor shall any Trustee be responsible for the act or omission of
any other Trustee, but nothing herein contained shall protect any
Trustee against any liability to which he or she should otherwise
be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of his or her office.
Every note, bond, contract, instrument, certificate, Share
or undertaking and every other act or thing whatsoever executed
or done by or on behalf of the Trust or the Trustees or any of
them in connection with the Trust shall be conclusively deemed to
have been executed or done only in or with respect to their or
his or her capacity as Trustees or Trustee, and such Trustees or
Trustee shall not be personally liable thereon.
ARTICLE VIII
INDEMNIFICATION
Trustees, Officers, etc.
Section 1. The Trust shall indemnify each of its
Trustees and officers (including persons who serve at the Trust's
request as directors, officers or trustees of another
organization in which the Trust has any interest as a
shareholder, creditor or otherwise) (hereinafter referred to as a
"Covered Person") against all liabilities and expenses, including
but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and counsel fees reasonably
incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or
legislative body, in which such Covered Person may be or may have
been involved as a party or otherwise or with which such 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, except that no Covered Person shall be indemnified
against any liability to the Trust or its Shareholders to which
such Covered Person would otherwise be subject by reason of
wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered
Person's office. Expenses, including counsel fees so incurred by
any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or
penalties), may 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 any 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 that (a) such Covered
Person shall provide security for his undertaking, (b) the Trust
shall be insured against losses arising by reason of such Covered
Person's failure to fulfill his undertaking or (c) a majority of
the Trustees who are disinterested persons and who are not
Interested Persons (provided that a majority of such Trustees
then in office act on the matter), or independent legal counsel
in a written opinion, shall determine, based on a review of
readily available facts (but not a full trial-type inquiry), that
there is reason to believe such Covered Person ultimately will be
entitled to indemnification.
Compromise Payment
Section 2. As to any matter disposed of (whether by a
compromise payment, pursuant to a consent decree or otherwise)
without an adjudication in a decision on the merits by a court,
or by any other body before which the proceeding was brought,
that such Covered Person is liable to the Trust or its
Shareholders by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office, indemnification shall be
provided if (a) approved as in the best interest of the Trust,
after notice that it involves such indemnification, by at least a
majority of the Trustees who are disinterested persons and are
not Interested Persons (provided that a majority of such Trustees
then in office act on the matter), upon a determination, based
upon a review of readily available facts (but not a full trial-
type inquiry), that such Covered Person is not liable to the
Trust or its Shareholders by reason of wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Covered Person's office, or (b)
there has been obtained an opinion in writing of independent
legal counsel, based upon a review of readily available facts
(but not a full trial-type inquiry) to the effect that such
indemnification would not protect such Covered Person against any
liability to the Trust to which such Covered Person would
otherwise be subject by reason of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in
the conduct of his office. Any approval pursuant to this Section
shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with this
Section as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction to have been
liable to the Trust or its Shareholders by reason of wilful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of such Covered Person's
office.
Indemnification Not Exclusive
Section 3. The right of indemnification hereby provided
shall not be exclusive of or affect any other rights to which any
such Covered Person may be entitled. As used in this Article
VIII, the term "Covered Person" shall include such person's
heirs, executors and administrators, and a "disinterested person"
is a person against whom none of the actions, suits or other
proceedings in question 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 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 such
persons.
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 representatives or, in the case of
a corporation or other entity, its corporate or other general
successor) shall be entitled to be held harmless from and
indemnified against all loss and expense arising from such
liability, but only out of the assets of the particular series of
shares of which he or she is or was a Shareholder.
ARTICLE IX
MISCELLANEOUS
Trustees, Shareholders, etc. Not Personally Liable; Notice
Section 1. All persons extending credit to, contracting
with or having any claim against the Trust or a particular series
of Shares shall look only to the assets of the Trust or the
assets of that particular series of Shares for payment under such
credit, contract or claim; and neither the Shareholders nor the
Trustees, nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable
therefor. Nothing in this Declaration of Trust shall protect any
Trustee against any liability to which such Trustee would
otherwise be subject by reason of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in
the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or
undertaking made or issued by the Trustees or by any officers or
officer 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 or made
by or on behalf of the Trust or by them as Trustees or Trustee or
as officers or officer and not individually and that the
obligations of such instrument are not binding upon any of them
or the Shareholders individually but are binding only upon the
assets and property of the Trust, and may contain such further
recital as he or she or they may deem appropriate, but the
omission thereof shall not operate to bind any Trustees or
Trustee or officers or officer or Shareholders or Shareholder
individually.
Trustee's Good Faith Action, Expert Advice, No Bond or Surety
Section 2. The exercise by the Trustees of their powers
and discretions hereunder shall be binding upon everyone
interested. A Trustee shall be liable for his or her own wilful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of the office of Trustee, and
for nothing else, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of
counsel or other experts with respect to the meaning and
operation of this Declaration of Trust, and shall be under no
liability for any act or omission in accordance with such advice
or for failing to follow such advice. The Trustees shall not be
required to give any bond as such, nor any surety if a bond is
required.
Liability of Third Persons Dealing with Trustees
Section 3. No person dealing with the Trustees shall be
bound to make any inquiry concerning the validity of any
transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the
Trust or upon its order.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the
Trust shall continue without limitation of time. The Trust may
be terminated at any time by vote of Shareholders holding at
least two-thirds of the Shares of each series entitled to vote or
by the Trustees by written notice to the Shareholders. Any
series of Shares may be terminated at any time by vote of
Shareholders holding at least two-thirds of the Shares of such
series entitled to vote or by the Trustees by written notice to
the Shareholders of such series.
Upon termination of the Trust or of any one or more series
of Shares, 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 or shares or other securities, or any combination thereof,
and distribute the proceeds to the Shareholders of the series
involved, ratably according to the number of Shares of such
series held by the several Shareholders of such series 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, provided that
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.
Filing of Copies, References, Headings
Section 5. 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 Clerk of the City of Boston, 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 such as
"herein," "hereof" and "hereunder," shall be deemed to refer to
this instrument as amended or affected by any such amendments.
Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts, each of
which shall be deemed an original.
Applicable Law
Section 6. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to
be governed by and construed and administered according to the
laws of said Commonwealth. The Trust shall be of the type
commonly called a Massachusetts business trust, and without
limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a trust.
Amendments
Section 7. This Declaration of Trust may be amended at
any time by an instrument in writing signed by a majority of the
then Trustees when authorized so to do by a vote of Shareholders
holding a majority of the Shares entitled to vote, except that an
amendment which shall affect the holders of one or more series or
classes of Shares but not the holders of all outstanding series
and classes shall be authorized by vote of the Shareholders
holding a majority of the Shares entitled to vote of each series
and class affected and no vote of Shareholders of a series or
class not affected shall be required. Amendments 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 shall not require authorization by Shareholder vote.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands in the City of Boston, Massachusetts for themselves and
their assigns, as of this 15th day of November 1991.
/s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
/s/ XXX XXXXXXXXX
-------------
Xxx Xxxxxxxxx
/s/ XXXX X. XXXXXXX
---------------
Xxxx X. Xxxxxxx
/s/ J. XXXXX XXXX, XX.
------------------
J. Xxxxx Xxxx, Xx.
/s/ XXXXXXX X. IRELAND, JR.
-----------------------
Xxxxxxx X. Ireland, Jr.
/s/ XXXX X. XXXXXXX, XX.
--------------------
Xxxx X. MdNeice, Jr.
/s/ XXXXX X. XXXXX, XX.
-------------------
Xxxxx X. Xxxxx, Xx.
/s/ XXXX X. XXXXXXXXX
-----------------
Xxxx X. Xxxxxxxxx
/s/ XXXXXX X. XXXXX
---------------
Xxxxxx X. Xxxxx
/s/ XXXXXX X. XXXXXXXX
------------------
Xxxxxx X. Xxxxxxxx
/s/ XXXXXXXX XXXXX, JR.
-------------------
Xxxxxxxx Xxxxx, Jr.
THE COMMONWEALTH OF MASSACHUSETTS
Boston, ss. November 15, 1991
Then personally appeared the above-named Trustees and
acknowledged the foregoing instrument to be their free act and
deed, before me,
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Notary Public
My commission expires: 3/2/95
(Notary's Seal)
