EXHIBIT c(ii)
PORTIONS OF
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
PERTAINING TO SHAREHOLDERS' RIGHTS
RS INVESTMENT TRUST
ARTICLE III
Shares
Section 1. DIVISION OF BENEFICIAL INTEREST. The Shares of the Trust
shall be issued in one or more Series as the Trustees may, without
Shareholder approval, authorize. 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 Agreement
and 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. Shareholders shall have no preemptive or other right
to subscribe to any additional Shares or other securities issued by the Trust
or any Series.
Section 2. OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each
Series. No certificates certifying the ownership of Shares shall be issued
except as the Board of Trustees may otherwise determine from time to time.
The Trustees may make such rules as they consider appropriate for the
transfer of Shares and similar matters. The record books of the Trust as
kept by the Trust or any transfer or similar agent, as the case may be, shall
be conclusive as to who are the Shareholders of each Series and class and as
to the number of Shares of each Series and class held from time to time by
each.
Section 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
Shares shall be deemed to be personal property giving only the rights
provided in this 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 existence of the Trust shall not operate to terminate the Trust, nor
entitle the
representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but entitles
such representative only to the rights of said deceased Shareholder under
this Trust. Ownership of Shares shall not entitle the Shareholder to any
title in or to the whole or any part of the Trust property or right to call
for a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders as partners. Neither the
Trust nor the Trustees, nor any officer, employee or agent of the Trust shall
have any power to bind personally any Shareholders, nor, except as
specifically provided herein, to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder
may at any time personally agree to pay.
Section 5. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS RELATING
TO SHARES. Notwithstanding any other provision of this Declaration of Trust
and without limiting the power of the Board of Trustees to amend the
Declaration of Trust as provided elsewhere herein, the Board of Trustees
shall have the power to amend this Declaration of Trust, at any time and from
time to time, in such manner as the Board of Trustees may determine in their
sole discretion, without the need for Shareholder action, so as to add to,
delete, replace or otherwise modify any provisions relating to the Shares
contained in this Declaration of Trust, provided that before adopting any
such amendment without Shareholder approval, the Board of Trustees shall
determine that it is consistent with the fair and equitable treatment of all
Shareholders or that Shareholder approval is not otherwise required by the
1940 Act or other applicable law.
Without limiting the generality of the foregoing, the Board of Trustees
may, for the above-stated purposes, amend the Declaration of Trust to:
(a) create one or more Series or classes of Shares (in
addition to any Series or classes already existing or otherwise) with such
rights and preferences and such eligibility requirements for investment
therein as the Trustees shall determine and reclassify any or all outstanding
Shares as shares of a particular Series or class in accordance with such
eligibility requirements;
(b) amend any of the provisions set forth in paragraphs (a)
through (h) of Section 5 of this Article III;
(c) combine one or more Series or classes of Shares into a
single Series or class on such terms and conditions as the Trustees shall
determine.
(d) change or eliminate any eligibility requirements for
investment in Shares of any Series or class, including, without limitation,
to provide for the issue of Shares of any Series or class in connection with
any merger or consolidation of the Trust with the other trust or company or
any acquisition by the Trust of part or all of the assets of another trust or
investment company;
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(e) change the designation of any Series or class of Shares;
(f) change the method of allocating dividends among the
various Series or classes of Shares;
(g) allocate assets, liabilities and expenses of the Trust
to a particular Series of Shares or 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,
allocate assets, liabilities, income and expenses of a Series to a particular
class of Shares of that Series or apportion the same among two or more
classes of Shares of that Series;
(h) specifically allocate assets to any or all Series of
Shares or create one or more additional Series of Shares which are preferred
over all other Series of Shares in respect of assets specifically allocated
thereto or any dividends paid by the Trust with respect to any net income,
however determined, earned from the investment and reinvestment of any assets
so allocated or otherwise and provide for any special voting or other rights
with respect to such Series.
Section 6. ESTABLISHMENT AND DESIGNATION OF SERIES OR CLASSES. The
establishment and designation of any Series or class of Shares shall be
effective upon the resolution by a majority of the then Trustees, setting
forth such establishment and designation and the relative rights an
preferences of such Series or class, or as otherwise provided in such
resolution. Shares of each Series or class established pursuant to this
Section 6, unless otherwise provided in the resolution establishing such
Series or class, shall have the following relative rights and preferences:
(a) ASSETS BELONGING TO SERIES. All consideration
received by the Trust for the issue or sale of Shares of a particular Series,
together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof from whatever
source derived, including, without limitation, any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may
be, shall irrevocably belong to that Series for all purposes, subject only to
the rights of creditors, and shall be so recorded upon the books of account
of the Trust. Such considerations, assets, income, earnings, profits and
proceeds thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation of
such assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, are herein referred to as "assets
belonging to" that Series. In the event that there are any assets, income,
earnings, profits and proceeds thereof, funds or payments which are not
readily identifiable as belonging to any particular Series (collectively
"General Assets"), the Trustees shall allocate such General Assets to,
between or among any one or more of the Series in such manner and on such
basis as they, in their sole discretion, deem fair and equitable, and any
General Asset so allocated to a particular Series shall
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belong to that Series; and, in the event that there are any assets, income,
earnings, profits and proceeds thereof, funds or payments belonging to any
Series which are not readily identifiable as belonging to any particular
class (collectively "Series General Assets"), the Trustees shall allocate
such Series General Assets to, between or among any one or more of the
classes of such Series in such manner and on such basis as they, in their
sole discretion, deem fair and equitable, and any Series General Asset so
allocated to a particular class shall belong to that class. Each such
allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Series and classes for all purposes.
(b) LIABILITIES BELONGING TO SERIES. The assets
belonging to each particular Series shall be charged with the liabilities of
the Trust in respect to that Series and all expenses, costs, charges and
reserves attributable to that Series and any general liabilities of the
Trust, or of any Series, which are not readily identifiable as belonging to
any particular Series, or any particular class of any Series, shall be
allocated and charged by the Trustees to and among any one or more of the
Series, or to and among any one or more of the classes of such Series, as the
case may be, in such manner and on such basis as the Trustees in their sole
discretion deem fair and equitable. The liabilities, expenses, costs,
charges, and reserves so charged to a Series or class are herein referred to
as "liabilities belonging to" that Series or class. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the holders of all Series and classes for all
purposes. Under no circumstances shall the assets allocated or belonging to
any particular Series be charged with liabilities attributable to any other
Series. All persons who have extended credit which has been allocated to a
particular Series, or who have a claim or contract which has been allocated
to any particular Series, shall look only to the assets of that particular
Series for payment of such credit, claim or contract.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND
REPURCHASES. Notwithstanding any other provisions of this Declaration of
Trust, including, without limitation, Article VI, 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 shall be effected by the Trust other than from the
assets belonging to such Series, nor, except as specifically provided in
Section 7 of this Article III, shall any Shareholder of any particular Series
otherwise have any right or claim against the assets belonging to any other
Series except to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series. The Trustees shall have
full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as capital;
and each such determination and allocation shall be conclusive and binding
upon the Shareholders.
(d) VOTING. 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
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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.
(e) FRACTIONS. Any fractional Share of a Series or class
of any Series shall carry proportionately all the rights and obligations of a
whole share of that Series or class, as the case may be, including rights
with respect to voting, receipt of dividends and distributions, redemptions
of Shares and termination of the Trust.
(f) EXCHANGE PRIVILEGE. The Trustees shall have the
authority to provide that the holders of Shares of any Series shall have the
right to exchange said Shares for Shares of one or more other Series of
Shares in accordance with such requirements and procedures as may be
established by the Trustees.
(g) COMBINATION OF SERIES. The Trustees shall have the
authority, without the approval of the Shareholders of any Series or class of
any Series unless otherwise required by applicable law, to combine the assets
and liabilities belonging to any two or more Series or classes into assets
and liabilities belonging to a single Series or class.
(h) ELIMINATION OF SERIES OR CLASSES. At any time that
there are no Shares outstanding of any particular Series or class of any
Series previously established and designated, the Trustees may amend this
Declaration of Trust to abolish that Series or class and to rescind the
establishment and designation thereof.
Section 7. INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder
or former Shareholder shall be held to be personally liable solely by reason
of his or her being or having been a Shareholder and not because of his or
her acts or omissions or for some other reason, the Shareholder or former
Shareholder (or his or her heirs, executors, administrators, or other legal
representatives or in the case of a corporation or other entity, its
corporate or other general successor) shall be entitled out of the assets of
the Trust to be held harmless from and indemnified against all loss and
expense arising from such liability.
ARTICLE IV
The Board of Trustees
Section 1. NUMBER, ELECTION AND TENURE. The number of Trustees
constituting the Board of Trustees shall be five (5), unless such number
shall be changed from time to time by written instrument signed by a majority
of the Board of Trustees, provided, however, that the number of Trustees
shall in no event be less than one nor more than 15. The Board of Trustees,
by action of a majority of the then Trustees at a duly constituted meeting,
may fill vacancies in the Board of Trustees or remove Trustees with or
without cause. Each Trustee shall serve during the continued lifetime of the
Trust until he or she dies, resigns, is declared bankrupt or
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incompetent by a court of appropriate jurisdiction, or is removed, or, if
sooner, until the next meeting of Shareholders called for the purpose of
electing Trustees and until the election and qualification of his or her
successor. Any Trustee may resign at any time by written instrument signed
by him or her and delivered to any officer of the Trust or to a meeting of
the Trustees. Such resignation shall be effective upon receipt unless
specified to be effective at some other time. Except to the extent expressly
provided in a written agreement with the Trust, no Trustee resigning and no
Trustee removed shall have any right to any compensation for any period
following his or her resignation or removal, or any right to damages on
account of such removal. The Shareholders may fix the number of Trustees and
elect Trustees at any meeting of Shareholders called by the Trustees for that
purpose.
Section 3. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Trustees,
and such Board shall have all powers necessary or convenient to carry out
that responsibility including the power to engage in securities transactions
of all kinds on behalf of the Trust. Without limiting the foregoing, the
Trustees may: adopt By-Laws not inconsistent with this Declaration of Trust
providing for the regulation and management of the affairs of the Trust and
may amend and repeal them to the extent that such By-Laws do not reserve that
right to the Shareholders; fill vacancies in or remove from their number, and
may elect and remove such officers and appoint and terminate such agents as
they consider appropriate; appoint from their own number and establish and
terminate one or more committees consisting of two or more Trustees which may
exercise the powers and authority of the Board of Trustees to the extent that
the Trustees determine; employ one or more 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 or with a Federal Reserve Bank, retain a
transfer agent or a shareholder servicing agent or both; provide for the
issuance and distribution of Shares by the Trust directly or through one or
more Principal Underwriters or otherwise; redeem, repurchase and transfer
Shares pursuant to applicable law; set record dates for the determination of
Shareholders with respect to various matters; declare and pay dividends and
distributions to Shareholders of each Series from the assets of such Series;
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, transfer or shareholder
servicing agent, or Principal Underwriter. Any determination as to what is
in the interests of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees.
Without limiting the foregoing, the Board of Trustees shall have power
and authority:
(f) Subject to the provisions of Article III, Section 3, to
allocate assets, liabilities, income and expenses of the Trust to a
particular Series of Shares or to apportion the same among two or more
Series, provided that any liabilities or expenses incurred by or arising in
connection with a particular Series of Shares shall be payable solely out of
the assets of that Series; and to the extent necessary or appropriate to give
effect to the preferences and special or relative rights
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and privileges of any classes of Shares, to allocate assets, liabilities,
income and expenses of a Series to a particular class of Shares of the Series
or to apportion the same among two or more classes of Shares of that Series;
(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 or payment of distributions and principal on its
portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisers, principal
underwriters, or independent contractors of the Trust, individually against
all claims and liabilities of every nature arising by reason of holding,
being or having held any such office or position, or by reason of any action
alleged to have been taken or omitted by any such person as Trustee, officer,
employee, agent, investment adviser, principal underwriter, or independent
contractor, including any action taken or omitted that may be determined to
constitute negligence; whether or not the Trust would have the power to
indemnify such person against liability;
Section 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Trustees shall
have the power, as frequently as they may determine, to cause each
Shareholder, or each Shareholder of any particular Series or class, to pay
directly, in advance or arrears, for charges of the Trust's custodian or
transfer, Shareholder servicing or similar agent, an amount fixed from time
to time by the Trustees, by setting off such charges due from such
Shareholder from declared but unpaid dividends owed such Shareholder and/or
by reducing the number of shares in the account of such Shareholder by that
number of full and/or fractional Shares which represents the outstanding
amount of such charges due from such Shareholder.
Section 7. SERVICE CONTRACTS.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers
of the Trust is a shareholder, director, officer, partner, trustee,
employee, manager, adviser, principal underwriter, distributor, or
affiliate or agent of or for any corporation, trust, association, or
other organizational or for any parent or affiliate of any organization
with which an advisory or management contract, or principal
underwriter's or distributor's contract, or transfer, shareholder
servicing or other type of service contract may have been or may
hereafter be made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in the Trust, or
that
(ii) any corporation, trust, association or other
organization with which an advisory or management contract or principal
underwriter's or distributor's contract, or transfer, shareholder
servicing or other type of service contract may have been or may
hereafter be made also has an advisory or management contract, or
principal underwriter's or distributor's contract, or transfer,
shareholder servicing or other service
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contract with one or more other corporations, trust, 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, provided approval of each such contract is made pursuant to the
requirements of the 1940 Act.
ARTICLE V
Shareholder Voting Powers and Meetings
Section 1. VOTING POWERS. Subject to the voting powers of one or
more classes of Shares as set forth elsewhere in this Declaration of Trust or
in the Bylaws, the Shareholders shall have power to vote only (i) for the
election of Trustees as provided in Article IV, Section 1, (ii) 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 the Shareholders, (iii) with respect to the termination of the Trust
or any Series or class to the extent and as provided in Article VIII, Section
4, and (iv) with respect to such additional matters relating to the Trust as
may be required by any registration of the Trust with the 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. 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 ▇▇▇▇▇▇ held in the name of two or more persons shall be
valid if executed by any one of them unless at or prior to exercise of the
proxy the Trust receives a specific written notice to the contrary from any
one of them. A proxy purporting to be executed by or on behalf of a
Shareholder shall be deemed valid unless challenged at or prior to its
exercise and the burden of proving invalidity shall rest on the challenger.
At any time when no Shares of a Series or class are outstanding, the Trustees
may exercise all rights of Shareholders of that Series or class with respect
to matters affecting that Series or class, take any action required by law,
this Declaration of Trust or the By-Laws, to be taken by Shareholders.
Section 2. VOTING POWER AND MEETINGS. Meetings of the Shareholders
of the Trust or of any Series or class may be called by the Trustees for the
purpose of electing Trustees as provided in Article IV, Section 1 and for
such other purposes as may be prescribed by law, by this Declaration of Trust
or by the By-Laws. Meetings of the Shareholders may also be called by the
Trustees from time to time for the purpose of taking action upon any other
matter deemed by the Trustees to be necessary or desirable. A meeting of
Shareholders may be held at any place designated by the Trustees. Written
notice of any meeting of Shareholders shall be give or
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caused to be given by the Trustees by mailing such notice at least seven (7)
days before such meeting, postage prepaid, stating the time and place of the
meeting, to each Shareholder entitled to vote at such meeting, at the
Shareholder's address as it appears on the records of the Trust. Whenever
notice of a meeting is required to be given to a Shareholder under this
Declaration of Trust or the By-Laws, a written waiver thereof, executed
before or after the meeting by such Shareholder or his or her attorney
thereunto authorized and filed with the records of the meeting, shall be
deemed equivalent to such notice.
Section 3. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
forty percent (40%) of the Shares entitled to vote on a particular matter
shall constitute a quorum for the transaction of business on that matter at a
Shareholders' meeting, except that where any provision of law or of this
Declaration of Trust or the By-Laws requires that holders of any Series or
class shall vote as a Series or class, then forty percent (40%) of the
aggregate number of Shares of that Series or class entitled to vote shall be
necessary to constitute a quorum for the transaction of business by that
Series or class. Any lesser number shall be sufficient for adjournments.
Any adjourned session or sessions may be held within a reasonable time
after the date set for the original meeting without further notice. Except
when a larger vote is required by any provision of this Declaration of Trust
or the By-Laws or by applicable law, when a quorum is present, a majority of
the Shares voted shall decide any questions and a plurality shall elect a
Trustee, provided that where any provision of law or of this Declaration of
Trust or of the By-Laws 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.
Section 4. ACTION BY WRITTEN CONSENTS. Any action taken by
Shareholders may be taken without a meeting if Shareholders holding a
majority of the Shares entitled to vote on the matter (or such larger
proportion thereof as shall be required by any express provision of this
Declaration of Trust or by the By-Laws) consent to the action in writing and
such written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken
at a meeting of Shareholders.
Section 5. RECORD DATES. For the purpose of determining the
Shareholders of any Series or class who are entitled to vote or act at any
meeting or any adjournment thereof, the Trustees may from time to time fix a
time, which shall be not more than ninety (90) days before the date of any
meeting of Shareholders, as the record date for determining the Shareholders
of such Series or class having the right to notice of and to vote at such
meeting and any adjournment thereof, and in such case only Shareholders of
record on such record date shall have such right, notwithstanding any
transfer of shares on the books of the Trust after the record date. For the
purpose of determining the Shareholders of any Series or class who are
entitled to receive payment or any dividend or of any other distribution, the
Trustees may from time to time fix a
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date, which shall be before the date for the payment of such dividend or such
other payment, as the record date for determining the Shareholders of such
Series or class having the right to receive such dividend or distribution.
Without fixing a record date the Trustees may for voting and/or distribution
purposes close the register or transfer books for one or more Series or
classes for all or any part of the period between a record date and a meeting
of Shareholders or the payment of a distribution. Nothing in this Section
shall be construed as precluding the Trustees from setting different record
dates for different Series or classes.
Section 6. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions, and Redemptions
Section 1. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. 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 nearest
cent unless the Trustees shall determine to adjust such fractions to a
fraction of a cent.
Determinations under this Section made in good faith shall be binding on
all parties concerned. 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.
Section 2. REDEMPTIONS AND REPURCHASES. The Trust shall purchase
such Shares as are offered by any Shareholder for redemption, upon the
presentation of a proper instrument of transfer together with a request
directed to the Trust or a person designated by the Trust that the Trust
purchase such Shares or in accordance with such other procedures for
redemption as the Trustees may from time to time authorize; and the Trust
will pay therefor the net asset value thereof, as determined in accordance
with the By-Laws and applicable law, next determined. Payment for said
Shares shall be made by the Trust to the Shareholder within seven days after
the date on which the request is made in proper form. The obligation set
forth in this Section 2 is subject to the provision that in the event that
any time the New York Stock Exchange is closed
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for other than weekends or holidays, or if permitted by the Rules of the
Commission during periods when trading on the Exchange is restricted or
during any emergency which makes it impracticable for the Trust to dispose of
the investments of the applicable Series or to determine fairly the value of
the net assets belonging to such Series or during any other period permitted
by order of the Commission for the protection of investors, such obligations
may be suspended or postponed by the Trustees.
The redemption price may in any case or cases be paid wholly or partly
in kind if the Trustees determine that such payment is advisable in the
interest of the remaining Shareholders of the Series for which the Shares are
being redeemed. Subject to the foregoing, the fair value, selection and
quantity of securities or other property so paid or delivered as all or part
of the redemption price may be determined by or under authority of the
Trustees. In no case shall the Trust be liable for any delay of any
corporation or other person in transferring securities selected for delivery
as all or part of any payment in kind.
Section 3. REDEMPTIONS AT THE OPTION OF THE TRUST. The Trust shall
have the right at its option and at any time to redeem Shares of any
Shareholder at the net asset value thereof as described in Section 1 of this
Article VI: (i) if at such time such Shareholder owns Shares of any Series
having an aggregate net asset value of less than an amount determined from
time to time by the Trustees, but not to exceed $40,000; or (ii) to the
extent that such Shareholder owns Shares equal to or in excess of a
percentage, determined from time to time by the Trustees, of the outstanding
Shares of the Trust or of any Series or class of any Series.
ARTICLE VIII
Miscellaneous
Section 1. TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE;
NOTICE. All persons extending credit to, contracting with or having any claim
against the Trust or any Series shall look only to the assets of the Trust,
or, to the extent that the liability of the Trust may have been expressly
limited by contract to the assets of a particular Series, only to the assets
belonging to the relevant Series, 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 on behalf of the Trust by the Board of Trustees, by any officers or
officer or otherwise may include a notice that this Declaration of Trust is
on file with the Secretary of The Commonwealth of Massachusetts and may
recite that the note, bond, contract, instrument, certificate or undertaking
was executed or made by or on behalf of the Trust or by them as Trustee or
Trustees or as
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officers or officer or otherwise and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property
of the Trust or upon the assets belonging to the Series or class for the
benefit of which the Trustees have caused the note, bond, contract,
instrument, certificate or undertaking to be made or issued, and may contain
such further recital as he or she or they may deem appropriate, but the
omission of any such recital shall not operate to bind any Trustee or
Trustees or officer or officers or Shareholders of any other person
individually.
Section 4. TERMINATION OF TRUST OR SERIES. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The
Trust may be terminated at any time by the affirmative vote of a "majority of
the outstanding voting securities" of each Series (as the quoted phrase is
defined in the 1940 Act), voting separately by Series, or by the Trustees by
written notice to the Shareholders. Any Series may be terminated at any time
by vote of the affirmative vote of "majority of the outstanding voting
securities" of that Series (as the quoted phrase is defined in the 1940 Act)
or by the Trustees by written notice to the Shareholders of that Series.
Upon termination of the Trust (or any Series, as the case may be), after
paying or otherwise providing for all charges, taxes, expenses and
liabilities belonging, severally, to each Series (or the applicable Series,
as the case may be), whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall, in accordance with such
procedures as the Trustees consider appropriate, reduce the remaining assets
belonging, severally, to each Series (or the applicable Series, as the case
may be), to distributable form in cash or shares or other securities, or any
combination thereof, and distribute the proceeds belonging to each Series (or
the applicable Series, as the case may be), to the Shareholders of that
Series, as a Series, ratably according to the number of Shares of that Series
held by the several Shareholders 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.
Section 5. MERGER AND CONSOLIDATION. The Trustees may cause the
Trust or one or more of its Series to be merged into or consolidated with
another Trust or company or the Shares exchanged under or pursuant to any
state or Federal statute, if any, or otherwise to the extent permitted by
law. Such merger or consolidation of Share exchange must be authorized by
vote of a majority of the outstanding Shares of the Trust, as whole, or any
affected Series, as may be applicable; provided that in all respects not
governed by statute or applicable law, the Trustees shall have power to
prescribe the procedure necessary or appropriate to accomplish a sale of
assets, merger or consolidation.
Section 6. FILING OF COPIES, REFERENCES, HEADINGS. The original or
a copy of this instrument and of each amendment hereto shall be kept at the
office of the Trust where it may be inspected by any Shareholder. A copy of
this instrument and of each amendment hereto shall be filed by the Trust with
the Secretary of The Commonwealth of Massachusetts and with any other
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governmental office where such filing may from time to time be required.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such amendments have been made and as to any
matters in connection with the Trust hereunder; and, with the same effect as
if it were the original, may rely on a copy certified by an officer of the
Trust to be a copy of this instrument or of any such amendments. In this
instrument and in any such amendment, references to this instrument, and all
expressions like "herein," "hereof," and "hereunder," shall be deemed to
refer to this instrument as amended or affected by any such amendments.
Headings are placed herein for convenience of reference only and shall not be
taken as a part hereof or control or affect the meaning, construction or
affect of this instrument. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
Section 9. TRUST ONLY. It is the intention of the Trustees to
create only the relationship of Trustee and beneficiary between the Trustees
and each Shareholder from time to time. It is not the intention of the
Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment, or any form of legal relationship other
than a trust. Nothing in this Agreement and Declaration of Trust shall be
construed to make the Shareholders, either by themselves, or with the
Trustees, partners or members of a joint stock association.
