XXXXXX XXXXXXX MUTUAL FUND
AGREEMENT AND DECLARATION OF TRUST
December 22, 1980
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DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
Date of This Notice
If you inquire about 02-02-81
your account, please
refer to this Employer Identification Number
number or attach a 00-0000000
copy of this notice
XXXXXXX XXXXXX MUTUAL FUND TRUST
0 XXXXXX XXXXX
XXXXXX, XX 00000
575 B 015555155
15555555
NOTICE OF NEW EMPLOYER IDENTIFICATION NUMBER ASSIGNED
XXXXXX XXXXXXX MUTUAL FUND
AGREEMENT AND DECLARATION OF TRUST
Page
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ARTICLE I. NAME AND DEFINITIONS 1
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Section 1.1 Name 1
Section 1.2 Definitions 1
(a) "Trust" 1
(b) "Trustees" 1
(c) "Shares" 1
(d) "Series" 1
(e) "Sub-Series" 2
(f) "Shareholder" 2
(g) "1940 Act" 2
(h) "Commission" 2
(i) "Declaration of Trust" 2
(j) "By-Laws" 2
ARTICLE II. PURPOSE OF TRUST 2
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ARTICLE III. THE TRUSTEES 2
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Section 3.1 Number, Designation, Election, Term, etc. 2
(a) Initial Trustees 2
(b) Number 2
(c) Term 3
(d) Resignation and Retirement 3
(e) Removal 3
(f) Vacancies 3
(g) Effect of Death, Resignation, etc. 3
(h) No Accounting 4
Section 3.2 Powers of Trustees 4
(a) Investments 5
(b) Disposition of Assets 5
(c) Ownership Powers 5
(d) Subscription 5
(e) Form of Holding 5
(f) Reorganization 5
(g) Voting Trusts 5
(h) Compromise 6
(i) Partnerships or Joint Ventures 6
(j) Borrowing and Security 6
(k) Guarantees 6
(l) Insurance 6
(m) Pension and Similar Plans 6
(i)
Section 3.3 Certain Contracts 7
(a) Advisory 7
(b) Administration 7
(c) Distribution 7
(d) Custodian and Depository 7
(e) Transfer and Dividend Disbursing Agency 7
(f) Shareholder Servicing 8
(g) Accounting 8
Section 3.4 Transactions With Related Parties 8
Section 3.5 Payment of Trust Expenses and Compensation
of Trustees 9
Section 3.6 Ownership of Assets of the Trust 9
ARTICLE IV. SHARES 9
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Section 4.1 Description of Shares 9
Section 4.2 Establishment and Designation of Series 11
(a) Assets Belonging to Series 11
(b) Liabilities Belonging to Series 12
(c) Income Belonging to Series 12
(d) Dividends 12
(e) Liquidation 13
(f) Voting 14
(g) Redemption by Shareholder 14
(h) Redemption by Trust 14
(i) Net Asset Value 15
(j) Transfer 15
(k) Equality 16
(1) Fractions 16
(m) Conversion Rights 16
Section 4.3 Ownership of Shares 16
Section 4.4 Investments in the Trust 16
Section 4.5 No Preemptive Rights 17
Section 4.6 Status of Shares and Limitation of
Personal Liability 17
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS 17
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.
Section 5.1 Voting Powers 17
Section 5.2 Meetings 18
Section 5.3 Record Dates 18
(ii)
Section 5.4 Quorum and Required Vote 19
Section 5.5 Action by Written Consent 19
Section 5.6 Inspection of Records 19
Section 5.7 Additional Provisions 20
ARTICLE VI. LIMITATION OF LIABILITY; INDEMNIFICATION
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OF SHAREHOLDERS 20
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Section 6.1 Trustees, Shareholders, etc. Not
Personally Liable 20
Section 6.2 Notice of Limited Liability 20
Section 6.3 Trustee's Good Faith Action; Expert
Advice; No Bond or Surety 20
Section 6.4 Liability of Third Persons Dealing with
Trustees 21
Section 6.5 Indemnification of Shareholders 21
ARTICLE VII. INDEMNIFICATION OF TRUSTEES, OFFICERS,
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EMPLOYEES AND AGENTS 21
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Section 7.1 Definitions 21
Section 7.2 Actions In Name of Trust or Shareholder 22
Section 7.3 Other Actions 22
Section 7.4 Advances of Expenses 23
Section 7.5 Indemnification Not Exclusive 23
Section 7.6 Insurance 23
ARTICLE VIII. MISCELLANEOUS 23
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Section 8.1 Duration and Termination of Trust 23
Section 8.2 Reorganization 24
Section S.3 Amendments 24
Section 8.4 Filing of Copies; References; Headings 25
Section 8.5 Applicable Law 25
(iii)
XXXXXX XXXXXXX MUTUAL FUND
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts this
22nd day of December, 1980, by the Trustees hereunder, and by the holders of
shares of beneficial interest to be issued hereunder as hereinafter provided.
WITNESSETH
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 benefit of the holders from time to
time of shares of beneficial interest in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1 Name. This Trust shall be known as "Xxxxxx Xxxxxxx Mutual
Fund" and the Trustees shall conduct the business of the Trust under that name
or any other name as they may from time to time determine.
Section 1.2 Definitions. 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 III;
(c) "Shares" refers to the transferable units of interest into which
the beneficial interest in the Trust or any Series or Sub-Series of the Trust
(as the context may require) shall be divided from time to time;
(d) "Series" refers to Series of Shares established and designated
under or in accordance with the provisions of Article IV;
(e) "Sub-Series" refers to Sub-Series within a Series established and
designated under or in accordance with the provisions of Article IV.
(f) "Shareholder" means a record owner of Shares;
(g) The "1940 Act" refers to the Investment Company Act of 1940 and
the Rules and Regulations thereunder, all as amended from time to time;
(h) The term "Commission" shall have the meaning given it in the 1940
Act;
(i) "Declaration of Trust" shall mean this Agreement and Declaration
of Trust as amended or restated from time to time; and
(j) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time.
Section 7.1 contains additional definitions applicable specifically to
Article VII.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Shareholders one or more investment programs primarily in securities and
debt instruments.
ARTICLE III
THE TRUSTEES
Section 3.1 Number, Designation, Election, Term, etc.
(a) Initial Trustees. Upon his execution of this Declaration of Trust
or a counterpart hereof or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof, each of Xxxx X. Xxxxxx, Xx.,
Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxx, Xxxxxx Xxxxxx, and Xxxxxxx Xxxxx shall become
a Trustee hereof.
(b) Number. The Trustees serving as such, whether named above or
hereafter becoming such, may increase or decrease (to not fewer than three) the
number of Trustees to a number other than the number theretofore determined. No
decrease in the number of Trustees shall have the effect of removing any Trustee
from office prior to the expiration of his term, but the number of
2
Trustees may be decreased in conjunction with the removal of a Trustee pursuant
to subsection (e) of this Section 3.1.
(c) Term. Each Trustee, whether named above or hereafter becoming a
Trustee, shall serve as a Trustee until the next annual meeting of Shareholders
or any special meeting in lieu thereof and until the election and qualification
of his successor, or until such Trustee sooner dies, resigns, retires or is
removed.
(d) Resignation and Retirement. Any Trustee may resign his trust or
retire as a Trustee, by written instrument signed by him and delivered to the
other Trustees or to any officer of the Trust, and such resignation or
retirement shall take effect upon such delivery or upon such later date as is
specified in such instrument.
(e) Removal. Any Trustee may be removed with or without cause at any
time either by written instrument, signed by at least two-thirds of the number
of Trustees prior to such removal specifying the date upon which such removal
shall become effective, or by the Shareholders at any meeting called for the
purpose.
(f) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement, removal
or incapacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees may (but so long as there are at least
three remaining Trustees, need not unless required by the 0000 Xxx) be filled
either by a majority of the remaining Trustees through the appointment in
writing of such other person as such remaining Trustees in their discretion
shall determine (unless a Shareholder election is required under the 0000 Xxx)
or by the election by the Shareholders, at a meeting called for the purpose, of
a person to fill such vacancy, and such appointment or election shall be
effective upon the written acceptance of the person named therein to serve as a
Trustee and agreement by such person to be bound by the provisions of this
Declaration of Trust, except that any such appointment or election in
anticipation of a vacancy to occur by reason of retirement, resignation, or
increase in number of Trustees to be effective at a later date shall become
effective only at or after the effective date of said retirement, resignation,
or increase in number of Trustees. As soon as any Trustee so appointed or
elected shall have accepted such appointment or election and shall have agreed
in writing to be bound by this Declaration of Trust and the appointment or
election is effective, the Trust estate shall vest in the new Trustee, together
with the continuing Trustees, without any further act or conveyance.
(g) Effect of Death, Resignation, etc. The death, resignation,
retirement, removal, or incapacity of the Trustees, or any one of them, shall
not operate to annul or terminate the Trust
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or to revoke or terminate any existing agency or contract created or entered
into pursuant to the terms of this Declaration of Trust.
(h) No Accounting. Except to the extent required by the 1940 Act or
under circumstances which would justify his removal for cause, no person ceasing
to be a Trustee as a result of his death, resignation, retirement, removal or
incapacity (nor the estate of any such person) shall be required to make an
accounting to the Shareholders or remaining Trustees upon such cessation.
Section 3.2 Powers of Trustees. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient to carry out
that responsibility and the purposes of the Trust. Without limiting the
foregoing, the Trustees may adopt By-Laws not inconsistent with this Declaration
of Trust providing for the conduct of the business and affairs of the Trust and
may amend and repeal them to the extent that such ByLaws do not reserve that
right to the Shareholders; they may as they consider appropriate elect and
remove officers and appoint and terminate agents and consultants and hire and
terminate employees, any one or more of the foregoing of whom may be a Trustee,
and may provide for the compensation of all of the foregoing; they may appoint
from their own number, and terminate, any one or more committees consisting of
two or more Trustees, including without implied limitation an executive
committee, which may, when the Trustees are not in session and subject to the
1940 Act, exercise some or all of the power and authority of the Trustees as the
Trustees may determine; in accordance with Section 3.3 they may employ one or
more Advisers, Administrators, Depositories and Custodians and may authorize any
Depository or Custodian to employ sub-custodians or agents and to deposit all or
any part of such assets in a system or systems for the central handling of
securities and debt instruments, retain transfer, dividend, accounting or
Shareholder servicing agents or any of the foregoing, provide for the
distribution of Shares by the Trust through one or more distributors, principal
underwriters or otherwise, set record dates or times for the determination of
Shareholders or various of them with respect to various matters; they may
compensate or provide for the compensation of the Trustees, officers, advisers,
administrators, custodians, other agents, consultants and employees of the Trust
or the Trustees on such terms as they deem appropriate; and in general they may
delegate to any officer of the Trust, to any committee of the Trustees and to
any employee, adviser, administrator, distributor, depository, custodian,
transfer and dividend disbursing agent, or any other agent or consultant of the
Trust such authority, powers, functions and duties as they consider desirable or
appropriate for the conduct of the business and affairs of the Trust, including
without implied limitation the power and authority to act in the name of the
Trust and of the Trustees, to sign documents and to act as attorney-in-fact for
the Trustees.
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Without limiting the foregoing and to the extent not inconsistent with
the 1940 Act or other applicable law, the Trustees shall have power and
authority:
(a) Investments. To invest and reinvest cash and other property, and
to hold cash or other property uninvested without in any event being bound or
limited by any present or future law or custom in regard to investments by
trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of the Trust;
(c) Ownership Powers. To vote or give assent, or exercise any rights
of ownership, with respect to stock or other securities, debt instruments or
property; and to execute and deliver proxies or powers of attorney to such
person or persons as the Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities, debt instruments
or property as the Trustees shall deem proper;
(d) Subscription. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or debt
instruments;
(e) Form of Holding. To hold any security, debt instrument or property
in a form not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees or of the Trust or in the name
of a custodian, sub-custodian or other depository or a nominee or nominees or
otherwise;
(f) Reorganization. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security or debt instrument of which is or was held in the Trust; to consent to
any contract, lease, mortgage, purchase or sale of property by such corporation
or issuer, and to pay calls or subscriptions with respect to any security or
debt instrument held in the Trust;
(g) Voting Trusts. To join with other holders of any securities or
debt instruments in acting through a committee, depositary, voting trustee or
otherwise, and in that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any such committee,
depository or trustee, and to delegate to them such power and authority with
relation to any security or debt instrument (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee, depository or
trustee as the Trustees shall deem proper;
5
(h) Compromise. To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy, including but not
limited to claims for taxes;
(i) Partnership and Joint Ventures. To enter into joint ventures,
general or limited partnerships and any other combinations or associations;
(j) Borrowing and Security. To borrow funds and to mortgage and pledge
the assets of the Trust or any part thereof to secure obligations arising in
connection with such borrowing;
(k) Guarantees. To endorse or guarantee the payment of any notes or
other obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust property or any part thereof to secure any of or all such obligations;
(l) Insurance. To purchase and pay for entirely out of Trust property
such insurance as they may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, consultants, investment advisers, managers,
administrators, distributors, principal underwriters, or independent
contractors, or any thereof (or any person connected therewith), of the Trust
individually against all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such person in
any such capacity, including any action taken or omitted that may be determined
to constitute negligence, whether or not the Trust would have the power to
indemnify such person against such liability; and
(m) Pension and Similar Plans. 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, trust 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.
Except as otherwise provided by the 1940 Act or other applicable law,
this Declaration of Trust or the By-Laws, any action to be taken by the Trustees
may be taken by a majority of the Trustees present at a meeting of Trustees (a
quorum, consisting of at least a majority of the Trustees then in office, being
present), within or without Massachusetts, including any meeting held by means
of a conference telephone or other communications equipment by means of which
all persons participating in the
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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.
Section 3.3 Certain Contracts. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of present and
future law or custom in regard to delegation of powers by trustees generally,
the Trustees may, at any time and from time to time and without limiting the
generality of their powers and authority otherwise set forth herein, enter into
one or more contracts with any one or more corporations, trusts, associations,
partnerships, limited partnerships, other type of organizations, or individuals,
("Contracting Party") to provide for the performance and assumption of some or
all of the following services, duties and responsibilities to, for or of the
Trust and/or the Trustees, and to provide for the performance and assumption of
such other services, duties and responsibilities in addition to those set forth
below as the Trustees may determine appropriate:
(a) Advisory. Subject to the general supervision of the Trustees and
in conformity with the stated policy of the Trustees with respect to the
investments of the Trust or of the assets belonging to any Series of Shares of
the Trust (as that phrase is defined in subsection (a) of Section 4.2), to
manage such investments and assets, make investment decisions with respect
thereto, and to place purchase and sale orders for portfolio transactions
relating to such investments and assets;
(b) Administration. Subject to the general supervision of the Trustees
and in conformity with any policies of the Trustees with respect to the
operations of the Trust, to supervise all or any part of the operations of the
Trust, and to provide all or any part of the administrative and clerical
personnel, office space and office equipment and services appropriate for the
efficient administration and operations of the Trust;
(c) Distribution. To distribute the Shares of the Trust, to be
principal underwriter of such Shares, and/or to act as agent of the Trust in the
sale of Shares and the acceptance or rejection of orders for the purchase of
Shares;
(d) Custodian and Depository. To act as depository for and to maintain
custody of the property of the Trust and accounting records in connection
therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain records of
the ownership of outstanding Shares, the issuance and redemption and the
transfer thereof, and to disburse any dividends declared by the Trustees and, in
accordance with the policies of the Trustees and/or the instructions of any
particular Shareholder, to reinvest any such dividends;
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(f) Shareholder Servicing. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect to
Shareholders and their Shares, and similar matters; and
(g) Accounting. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties, Shareholders
or otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine.
Section 3.4 Transactions With Related Parties.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is
a shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party, or of or for any parent or affiliate of any
Contracting Party or that the Contracting Party or any parent or
affiliate thereof is a Shareholder or has an interest in the Trust, or
that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships or other
organizations, or has other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust and/or the
Trustees or disqualify any Shareholder Trustee or officer of the Trust from
voting upon or executing the same or create any liability or accountability to
the Trust or its Shareholders, provided that in the case of any relationship or
interest referred to in the preceding clause (i) on the part of any Trustee or
officer of the Trust either (A) the material facts as to such relationship or
interest have been disclosed to or are known by the Trustees not having any such
relationship or interest and the contract involved is approved in good faith by
a majority of such Trustees not having any such relationship or interest (even
though such unrelated or disinterested Trustees are less than a quorum of all of
the Trustees), (B) the material facts as to such relationship or interest and as
to the contract have been disclosed to or are known by the Shareholders entitled
to vote thereon and the contract involved
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is specifically approved in good faith by vote of the Shareholders so entitled
to vote, or (C) the specific contract involved is fair to the Trust as of the
time it is authorized, approved or ratified by the Trustees or by the
Shareholders.
Any Trustee, officer or other agent of the Trust, and any organization
in which any such person is interested may acquire, own, hold and dispose of
Shares of any Series of the Trust to the same extent as if such person were not
a Trustee, officer or other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may purchase Shares of any Series from any
such person or any such organization subject only to the general limitations,
restrictions or other provisions applicable to the sale or purchase of Shares of
such Series generally.
Section 3.5 Payment of Trust Expenses and Compensation of Trustees.
The Trustees are authorized to pay or to cause to be paid out of the principal
or income of the Trust, or partly out of principal and partly out of income, and
to charge or allocate the same to, between or among such one or more of the
Series that may be established and designated pursuant to Article IV, as the
Trustees deem fair, all expenses, fees, charges, taxes and liabilities incurred
or arising in connection with the Trust, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Trust's officers, employees,
investment adviser, administrator, distributor, principal underwriter, auditor,
counsel, depository, custodian, transfer agent, dividend disbursing agent,
accounting agent, Shareholder servicing agent, and such other agents,
consultants, and independent contractors and such other expenses and charges as
the Trustees may deem necessary or proper to incur. Without limiting the
generality of any other provision hereof, the Trustees shall be entitled to
reasonable compensation from the Trust for their services as Trustees and may
fix the amount of such compensation.
Section 3.6 Ownership of Assets of the Trust. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trustees.
ARTICLE IV
SHARES
Section 4.1 Description of Shares. The beneficial interest in the Trust
shall be divided into Shares, all without par value and of one class, but the
Trustees shall have the authority from time to time to divide the class of
Shares into two or more Series of Shares (including without limitation those
Series specifically established and designated in Section 4.2), as they deem
necessary or desirable, to establish and designate such Series, and to fix and
determine the relative rights and preferences as between the different Series of
Shares as to right of redemption and the price, terms and manner of redemption,
special and rela-
9
tive rights as to dividends and other distributions and on liquidation, sinking
or purchase fund provisions, conversion rights, and conditions under which the
several Series shall have separate voting rights or no voting rights. Except as
aforesaid, as otherwise provided herein, or as provided in an instrument of the
Trustees properly establishing and designating a Series, all Shares of the
different Series shall be identical.
The Shares of each Series may be issued or reissued from time to time
in one or more Sub-Series ("Sub-Series"), as determined by the Board of
Trustees. Each Sub-Series shall be appropriately designated, prior to the
issuance of any Shares thereof, by some distinguishing letter, number or title.
All Shares within a Sub-Series shall be alike in every particular. All Shares of
each Series shall be of equal rank and have the same powers, preferences and
rights, and shall be subject to the same qualifications, limitations and
restrictions without distinction between the Shares of different Sub-Series
thereof, except with respect to such differences in the rate or rates of
dividends or distributions among such Sub-Series as the Board of Trustees shall
from time to time determine to be necessary in order to comply with the 1940 Act
or other applicable laws, including differences in the rate or rates of
dividends or distributions.
The number of authorized Shares and the number of Shares of each Series
that may be issued is unlimited. The Trustees may increase or decrease the
number of Shares of any Series, but the number of Shares of any Series shall not
be decreased below the number then outstanding. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any Series into one or more Series that may be established and designated from
time to time. The Trustees may classify or reclassify from time to time any
unissued Shares of any Series by fixing or altering the terms thereof and by
assigning such unissued Shares to an existing or newly created Sub-Series. The
Trustees may from time to time increase the number of Shares allocated to any
Sub-Series already created by providing that any unissued Shares of the
applicable Series shall constitute part of such Sub-Series, or may decrease the
number of Shares allocated to any Sub-Series already created by providing that
any unissued Shares previously assigned to such Sub-Series shall no longer
constitute part thereof. The Board of Trustees is empowered (i) to redesignate
any issued Shares of any Series by assigning a distinguishing letter, number or
title to such shares and (ii) to reclassify all or any part of the issued Shares
of any Series to make them part of an existing or newly created Sub-Series. The
Trustees may hold as treasury Shares (of the same or some other Series or
Sub-Series), reissue for such consideration and on such terms as they may
determine, or cancel, at their discretion from time to time, any Shares of any
Series reacquired by the Trust.
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The Trustees may issue Shares of any Series for such consideration and
on such terms as they may determine (or for no consideration if pursuant to a
Share dividend or split-up), all without action or approval of the Shareholders.
All Shares when so issued on the terms determined by the Trustees shall be fully
paid and non-assessable (but may be subject to mandatory contribution back to
the Trust as provided in subsection (i) of Section 4.2).
The Trustees may from time to time close the transfer books or
establish record dates and times for the purposes of determining the holders of
Shares entitled to be treated as such, to the extent provided or referred to in
Section 5.3.
The establishment and designation of any Series of Shares in addition
to those established and designated in Section 4.2, or any Sub-Series, shall be
effective upon the execution by a majority of the then Trustees of an instrument
setting forth such establishment and designation and the relative rights and
preferences of such Series or Sub-Series, or as otherwise provided in such
instrument. At any time that there are no Shares outstanding of any particular
Series or Sub-Series previously established and designated, the Trustees may by
an instrument executed by a majority of their number abolish that Series or
Sub-Series and the establishment and designation thereof. Each instrument
referred to in this paragraph shall have the status of an amendment to this
Declaration of Trust.
Section 4.2 Establishment and Designation of Series. Without limiting
the authority of the Trustees set forth in Section 4.1 to establish and
designate any further Series, the Trustees hereby establish and designate one
Series of Shares: "Xxxxxx Xxxxxxx Cash Management Fund" Shares. The Xxxxxx
Xxxxxxx Cash Management Fund Shares and any Shares of any further Series that
may from time to time be established and designated by the Trustees shall
(unless the Trustees otherwise determine with respect to some further Series or
Sub-Series at the time of establishing and designating the same) 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, including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds in whatever form the same may be, shall
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 consideration, assets, income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, together with any General Items
allocated to that Series as
11
provided in the following sentence, 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
Items"), the Trustees shall allocate such General Items to and among any one or
more of the Series established and designated from time to time in such manner
and on such basis as they, in their sole discretion, deem fair and equitable;
and any General Items so allocated to a particular Series shall belong to that
Series. Each such allocation by the Trustees shall be conclusive and binding
upon the Shareholders of all Series for all purposes.
(b) Liabilities Belonging to Series. The assets belonging to each
particular Series shall be charged with the liablilities of the Trust in respect
of that Series and all expenses, costs, charges and reserves attributable to
that Series, and any general liabilities, expenses, costs, charges or reserves
of the Trust which are not readily identifiable as belonging to any particular
Series shall be allocated and charged by the Trustees to and among any one or
more of the Series established and designated from time to time in such manner
and on such basis as the Trustees in their sole discretion deem fair and
equitable. The liabilities, expenses, costs, charges and reserves allocated and
so charged to a Series are herein referred to as "liabilities belonging to" that
Series. Each allocation of liabilities, expenses, costs, charges and reserves by
the Trustees shall be conclusive and binding upon the holders of all Series for
all purposes.
(c) Income Belonging to Series. The Board of Trustees shall have full
discretion, to the extent not inconsistent with Massachusetts law and 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.
Income belonging to a Series includes all income, earnings and profits
derived from assets belonging to that Series, less any expenses, costs, charges
or reserves belonging to that Series, for the relevant time period, all
determined in accordance with generally accepted accounting principles.
(d) Dividends. Dividends and distributions on Shares of a particular
Series may be paid with such frequency as the Trustees may determine, which may
be daily or otherwise pursuant to a standing resolution or resolutions adopted
only once or with such frequency as the Trustees may determine, to the holders
of Shares of that Series, from such of the income and capital gains, accrued or
realized, from the assets belonging to that Series, as the Trustees may
determine, after providing for actual and accrued liabilities belonging to that
Series.
12
Except as hereafter provided, all dividends on Shares of a particular
Series shall be paid only out of the income belonging to that Series and capital
gains distributions on Shares of a particular Series shall be paid only out of
the capital gains belonging to that Series. All dividends and distributions on
Shares of a particular Series shall be distributed pro rata to the holders of
that Series in proportion to the number of Shares of that Series held by such
holders at the date and time of record established for the payment of such
dividends or distributions, except that in connection with any dividend or
distribution program or procedure the Trustees may determine that no dividend or
distribution shall be payable on Shares as to which the Shareholder's purchase
order and/or payment have not been received by the time or times established by
the Trustees under such program or procedure, and except that there may be
differences in the rate or rates of dividends or distributions between different
Sub-Series of a Series pursuant to a resolution, which may be a standing
resolution, of the Board of Trustees.
The Trust intends to qualify as a "regulated investment company" under
the Internal Revenue Code of 1954, as amended, or any successor or comparable
statute thereto, and regulations promulgated thereunder. Inasmuch as the
computation of net income and gains for federal income tax purposes may vary
from the computation thereof on the books of the Trust, the Board of Trustees
shall have the power, in its sole discretion, to distribute in any fiscal year
as dividends, including dividends designated in whole or in part as capital
gains distributions, amounts sufficient, in the opinion of the Board of
Trustees, to enable the Trust to qualify as a regulated investment company and
to avoid liability of the Trust for federal income tax in respect of that year.
However, nothing in the foregoing shall limit the authority of the Board of
Trustees to make distributions greater than or less than the amount necessary to
qualify as a regulated investment company and to avoid liability of the Trust
for such tax.
Dividends and distributions may be made in cash or Shares or a
combination thereof as determined by the Trustees or pursuant to any program
that the Trustees may have in effect at the time for the election by each
Shareholder of the mode of the making of such dividend or distribution to that
Shareholder. Any such dividend or distribution paid in Shares will be paid at
the net asset value thereof as determined in accordance with subsection (i) of
Section 4.2.
(e) Liquidation. In the event of the liquidation or dissolution of the
Trust, the Shareholders of each Series that has been established and designated
shall be entitled to receive, as a Series, when and as declared by the Trustees,
the excess of the assets belonging to that Series over the liabilities belonging
to that Series. The assets so distributable to the Shareholders of any
particular Series shall be distributed among such Shareholders in proportion to
the number of Shares of that Series
13
held by them and recorded on the books of the Trust. The liquidation of any
particular Series with Shares then outstanding may be authorized by vote of a
majority of the Trustees then in office subject to the approval of a majority of
the outstanding voting securities of that Series, as defined in the 1940 Act.
(f) Voting. On each matter submitted to a vote of the Shareholders,
each holder of a Share shall be entitled to one vote for each Share standing in
his name on the books of the Trust irrespective of the Series thereof and all
Shares of all Series shall vote as a single class ("Single Class Voting");
provided, however, that (i) as to any matter with respect to which a separate
vote of any Series is required by the 1940 Act or would be required under the
Massachusetts Business Corporation Law if the Trust were a Massachusetts
business corporation, such requirements as to a separate vote by that Series
shall apply in lieu of Single Class Voting as described above; (ii) in the event
that the separate vote requirements referred to in (i) above apply with respect
to one or more Series, then, subject to (iii) below, the Shares of all other
Series shall vote as a single class; and (iii) as to any matter which does not
affect the interest of a particular Series, only the holders of Shares of the
one or more affected Series shall be entitled to vote.
(g) Redemption by Shareholder. Each holder of Shares of a particular
Series shall have the right at such times as may be permitted by the Trust, but
no less frequently than once each week, to require the Trust to redeem all or
any part of his Shares of that Series at a redemption price equal to the net
asset value per Share of that Series next determined in accordance with
subsection (i) of this Section 4.2 after the Shares are properly tendered for
redemption, less such redemption charge, if any, as is determined by the Board
of Trustees, which redemption charge shall not exceed one percent (1%) of said
net asset value per Share. Payment of the redemption price shall be in cash;
provided, however, that if the Trustees determine, which determination shall be
conclusive, that conditions exist which make payment wholly in cash unwise or
undesirable, the Trust may make payment wholly or partly in securities or other
assets belonging to the Series of which the Shares being redeemed are part at
the value of such securities or assets used in such determination of net asset
value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of any
Series to require the Trust to redeem Shares of that Series during any period or
at any time when and to the extent permissible under the 1940 Act.
(h) Redemption by Trust. Each Share of each Series that has been
established and designated is subject to redemption by the Trust at the
redemption price which would be applicable if
14
such Share was then being redeemed by the Shareholder pursuant to subsection (g)
of this Section 4.2 at any time if the Trustees determine in their sole
discretion that failure to so redeem may have materially adverse consequences to
all or any of the holders of the Shares, or any Series thereof, of the Trust,
and upon such redemption the holders of the Shares so redeemed shall have no
further right with respect thereto other than to receive payment of such
redemption price. In addition, the Board of Trustees, in its sole discretion,
may require a Shareholder to redeem all of his Shares of any Series within
thirty days after the end of any month, if the value of all of his Shares of
that Series at the end of said month is less than the minimum amount established
from time to time by the Board of Trustees.
(i) Net Asset Value. The net asset value per Share of any Series shall
be the quotient obtained by dividing the value of the net assets of that Series
(being the value of the assets belonging to that Series less the liabilities
belonging to that Series) by the total number of Shares of that Series
outstanding, all determined in accordance with the methods and procedures,
including without limitation those with respect to rounding, established by the
Trustees from time to time and in a manner not inconsistent with the 1940 Act.
The Trustees may determine to maintain the net asset value per Share
of any Series at a designated constant dollar amount and in connection therewith
may adopt procedures not inconsistent with the 1940 Act for the continuing
declarations of income attributable to that Series as dividends payable in
additional Shares of that Series at the designated constant dollar amount and
for the handling of any losses attributable to that Series. Such procedures may
provide that in the event of any loss each Shareholder shall be deemed to have
contributed to the capital of the Trust attributable to that Series his pro rata
portion of the total number of Shares required to be cancelled in order to
permit the net asset value per Share of that Series to be maintained, after
reflecting such loss, at the designated constant dollar amount. Each Shareholder
of the Trust shall be deemed to have agreed, by his investment in any Series
with respect to which the Trustees shall have adopted any such procedure, to
make the contribution referred to in the preceding sentence in the event of any
such loss.
The Trustees may determine that the net asset value of different
Sub-Series within a Series may differ to the extent necessary to equitably
reflect the consequences of differing dividend rates as between said Sub-Series.
(j) Transfer. All Shares of each particular Series shall be
transferable, but transfers of Shares of a particular Series will be recorded on
the Share transfer records of the Trust applicable to that Series only at such
times as Shareholders shall have the right to require the Trust to redeem Shares
of that Series and at such other times as may be permitted by the Trustees.
15
(k) Equality. All Shares of each particular Series shall represent an
equal proportionate interest in the assets belonging to that Series (subject to
the liabilities belonging to that Series), and each Share of any particular
Series shall be equal to each other Share of that Series; but the provisions of
this sentence shall not restrict any distinctions permissible under subsection
(c) of this Section 4.2 that may exist with respect to dividends and
distributions on Shares of different Sub-Series of the same Series or as
otherwise provided therein. The Trustees may from time to time divide or combine
the Shares of any particular Series into a greater or lesser number of Shares of
that Series without thereby changing the proportionate beneficial interest in
the assets belonging to that Series or in any way affecting the rights of Shares
of any other Series.
(l) Fractions. Any fractional Share of any Series or Sub-Series, if
any such fractional Share is outstanding, shall carry proportionately all the
rights and obligations of a whole Share of that Series or Sub-Series, including
with respect to voting, receipt of dividends and distributions, redemption of
Shares, and liquidation of the Trust.
(m) Conversion Rights. Subject to compliance with the requirements of
the 1940 Act, the Trustees shall have the authority to provide that holders of
Shares of any Series shall have the right to convert said Shares into Shares of
one or more other Series of Shares in accordance with such requirements,
including the payment of a sales commission where appropriate, and procedures as
may be established by the Trustees.
Section 4.3 Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or of a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each Series
that has been established and designated. No certificates certifying the
ownership of Shares need be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of Shares certificates, the use of facsimile
signatures, the transfer of Shares and similar matters. The record books of the
Trust as kept by the Trust or any transfer or similar agent, as the case may be,
shall be conclusive as to who are the Shareholders and as to the number of
Shares of each Series or Sub-Series held from time to time by each such
Shareholder.
Section 4.4 Investments in the Trust. The Trustees may accept
investments in the Trust from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase of Shares that conform to such authorized terms and
16
to reject any purchase orders for Shares whether or not conforming to such
authorized terms.
Section 4.5 No Preemptive Rights. Shareholders shall have no preemptive
or other right to subscribe to any additional Shares or other securities issued
by the Trust.
Section 4.6 Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the Trust, or 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 V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers. The Shareholders shall have power to vote
only (i) for the election or removal of Trustees as provided in Section 3.1,
(ii) with respect to any contract with a Contracting Party as provided in
Sections 3.3 and 3.4 as to which Shareholder approval is required by the 1940
Act, (iii) with respect to any termination or reorganization of the Trust or any
Series to the extent and as provided in Sections 8.1 and 8.2, (iv) with respect
to any amendment of this Declaration of Trust to the extent and as provided in
Section 8.3, (v) to the same extent as the stockholders of a Massachusetts
business corporation as to whether or not a court action, proceeding or claim
should or should not be brought or maintained derivately 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 reguired by the 1940 Act,
this Declaration of Trust, the By-Laws or any registration of the Trust with the
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable.
17
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.
Section 5.2 Meetings. There shall be an annual meeting of Shareholders
on the date fixed in the By-Laws at the office of the Trust in Boston,
Massachusetts, or at such other place as may be designated in the call thereof,
which call shall be made by the Trustees. In the event that such meeting is not
held in any year on the date fixed in the By-Laws, whether the omission be by
oversight or otherwise, a subsequent special meeting may be called by the
Trustees and held in lieu of the annual meeting with the same effect as though
held on such date. Special meetings may also be called by the Trustees from time
to time for the purpose of taking action upon any matter requiring the vote or
authority of the Shareholders as herein provided or upon any other matter deemed
by the Trustees to be necessary or desirable. Written notice of any meeting of
Shareholders shall be given or caused to be given by the Trustees by mailing
such notice at least seven days before such meeting, postage prepaid, stating
the time, place and purpose of the meeting, to each Shareholder at the
Shareholder's address as it appears on the records of the Trust. Upon written
demand for a special meeting (including a meeting involving only the holders of
Shares of one or more but fewer than all Series) by Shareholders holding at
least 10% of the Shares then outstanding of all Series entitled to vote upon any
one matter proposed to be submitted to the special meeting, the Trustees shall
call a special meeting of Shareholders to consider such matter or matters. If
the Trustees shall fail to call or give notice of such special meeting of
Shareholders for which a proper demand has been made within thirty days after
such demand, then such Shareholders may call and give notice of such special
meeting, and thereupon the meeting shall be held in the manner provided for
herein in case of call thereof by the Trustees.
Section 5.3 Record Dates. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution, or
for the purpose of any other action, the Trustees may from time to time close
the transfer books for such period, not exceeding 30 days (except at or in
connection with the termination of the Trust), as the Trustees
18
may determine; or without closing the transfer books the Trustees may fix a date
and time not more than 60 days prior to the date of any meeting of Shareholders
or other action as the date and time of record for the determination of
Shareholders entitled to vote at such meeting or any adjournment thereof or to
be treated as Shareholders of record for purposes of such other action, and any
Shareholder who was a Shareholder at the date and time so fixed shall be
entitled to vote at such meeting or any adjournment thereof or (subject to any
provisions permissible under subsection (d) of Section 4.2 with respect to
dividends or distributions on Shares that have not been ordered and/or paid for
by the time or times established by the Trustees under the applicable dividend
or distribution program or procedure then in effect) to be treated as a
Shareholder of record for purposes of such other action, even though he has
since that date and time disposed of his Shares, and no Shareholder becoming
such after that date and time shall be so entitled to vote at such meeting or
any adjournment thereof or to be treated as a Shareholder of record for purposes
of such other action.
Section 5.4 Quorum and Required Vote. A majority of the Shares
entitled to vote shall be a quorum for the transaction of business at a
Shareholders' meeting, but any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held, within a reasonable
time after the date set for the original meeting without the necessity of
further notice. A majority of the Shares voted at a meeting at which a quorum is
present shall decide any questions and a plurality shall elect a Trustee.
However, when a different vote is required by the 1940 Act or an express
provision of this Declaration of Trust or the By-Laws, that provision shall
apply.
Section 5.5 Action by Written Consent. Subject to the provisions of
the 1940 Act and other applicable law, any action taken by Shareholders may be
taken without a meeting if a majority of Shareholders entitled to vote on the
matter (or such other proportion thereof as shall be required by the 1940 Act or
by any express provision of this Declaration of Trust or the By-Laws) consent to
the action in writing and such written consents are filed with the records of
the meetings of Shareholders. Such consent shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
Section 5.6 Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
stockholders of a Massachusetts business corporation under the Massachusetts
Business Corporation Law.
19
Section 5.7 Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
OF SHAREHOLDERS
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable. All
persons extending credit to, contracting with or having any claim against the
Trust shall look only to the assets of the Trust 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. Every note, bond, contract, instrument, certificate
or undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the Trust
shall be conclusively deemed to have been executed or done only by or for the
Trust or the Trustees and not personally. Nothing in this Declaration of Trust
shall protect any Trustee or officer against any liability to the Trust or the
Shareholders to which such Trustee or officer would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Trustee or of such
officer.
Section 6.2 Notice of Limited Liability . 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 the Commonwealth of Massachusetts and shall recite to the
effect 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, but the omission thereof shall not operate to bind any Trustees or
Trustee or officers or officer or Shareholders or Shareholder individually.
Section 6.3 Trustee's Good Faith Action; Expert Advice; No Bond or
Surety. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall be liable for his own
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee, and for nothing else,
and shall not be liable for errors of judgment or mistakes of fact or law.
Subject to the foregoing, (a) the Trustees shall not be responsible or liable in
any event for any neglect or
20
wrongdoing of any officer, agent, employee, consultant, adviser, administrator,
distributor or principal underwriter, custodian or transfer, dividend
disbursing, Shareholder servicing or accounting agent of the Trust, nor shall
any Trustee be responsible for the act or omission of any other Trustee; (b) the
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration of Trust and their duties as Trustees, and
shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice; and (c) in discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely upon
the books of account of the Trust and upon written reports made to the Trustees
by any officer appointed by them, any independent public accountant, and (with
respect to the subject matter of the contract involved) any officer, partner or
responsible employee of a Contracting Party appointed by the Trustees pursuant
to Section 3.3. The Trustees as such shall not be required to give any bond or
surety or any other security for the performance of their duties.
Section 6.4 Liability of Third Persons Dealing with Trustees. No
person dealing with the Trustees shall be bound to make any inquiry concerning
the validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
Section 6.5 Indemnification of Shareholders. In case any Shareholder
or former Shareholder shall be charged or held to be personally liable for any
obligation or liability of the Trust solely by reason of being or having been a
Shareholder and not because of such Shareholder's acts or omissions or for some
other reason, the Trust (upon proper and timely request by the Shareholder)
shall assume the defense against such charge and satisfy any judgment thereon,
and the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives or in the case of a corporation or
other entity, its corporate or other general successor) shall be entitled out of
the assets of the Trust estate to be held harmless from and indemnified against
all loss and expense arising from such liability.
ARTICLE II
INDEMNIFICATION OF TRUSTEES, OFFICERS,
EMPLOYEES AND AGENTS
Section 7.1 Definitions. For purposes of this Article VII:
(a) "Covered Person" means an individual: (i) who is a present or
former trustee, officer, agent, or employee of the Trust or who serves or served
another corporation, partnership, joint venture, trust, or other enterprise in
one of these capaci-
21
ties at the request of the Trust; and (ii) who by reason of his position was,
is, or is threatened to be made a party to a Proceeding. It shall also include
such person's heirs, executors and administrators.
(b) "Proceeding" includes any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative.
(c) "Disabling Conduct" means willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the Covered Person's
office.
(d) "Disinterested Trustee" means a Trustee who is neither an
"interested person" as defined in Section 2(a)(19) of the 1940 Act nor a party
to the Proceeding(s) in question.
Section 7.2 Actions In Name of Trust or Shareholder. The Trust shall
indemnify any Covered Person against all liabilities, including but not limited
to amounts paid in satisfaction of judgments, in compromises or as fines or
penalties, and expenses, including reasonable legal and accounting fees,
incurred in connection with the defense or disposition of any Proceeding by or
in the name of the Trust or any Shareholder in his capacity as such if one of
the following conditions is satisfied:
(a) a favorable final decision on the merits (which includes a
dismissal of the Proceeding for insufficiency of the evidence) is made by a
court or administrative body before whom it was brought against the Covered
Person; or
(b) a reasonable determination is made, based upon a review of the
facts (but without a hearing), that the Covered Person was not liable by reason
of Disabling Conduct, by either (i) the vote of a majority of a quorum of
Disinterested Trustees, or (ii) independent legal counsel in a written opinion,
or
(c) a determination is made to indemnify the Covered Person utilizing
procedures approved by the Board of Trustees by resolution or otherwise if the
Trustees shall have received an opinion of independent legal counsel that
indemnification in accordance with such procedures is not inconsistent with the
1940 Act.
Section 7.3 Other Actions. The Trust shall indemnify any Covered
Person against any liabilities, including but not limited to amounts paid in
satisfaction of judgments, in compromises or as fines or penalties, and
expenses, including reasonable legal and accounting fees, incurred in connection
with the defense or disposition of any Proceeding other than a Proceeding of the
type described in Section 7.2, except with respect to any matter as to which the
Covered Person shall have engaged in Disabling conduct or shall have been
finally adjudicated in the Proceeding not to have acted in good faith and in the
reasonable belief
22
that such Covered Person's action was in or not opposed to the best interests of
the Trust.
Section 7.4 Advances of Expenses. The Trust shall advance attorneys'
fees or other expenses incurred by a Covered Person in defending a Proceeding,
upon the undertaking by or on behalf of the Covered Person to repay the advance
unless it is ultimately determined that such Covered Person is entitled to
indemnification, so long as one of the following conditions is met: (i) the
Covered Person shall provide security for his undertaking, (ii) the Trust shall
be insured against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the Disinterested Trustees, or an independent legal
counsel in a written opinion, shall determine, based on a review of readily
available facts (as opposed to a full hearing), that there is reason to believe
that the Covered Person ultimately will be found entitled to indemnification.
Section 7.5 Indemnification Not Exclusive. The right of indemnification
provided by this Article VII shall not be exclusive of or affect any other
rights to which any such Covered Person may be entitled.
Section 7.6 Insurance. The Trust may purchase and maintain insurance on
its behalf and on behalf of any Covered Person against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Trust would have the power to indemnify him
against such liability under the provisions of this Article VII.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The Trust
may be terminated at any time by a majority of the Trustees then in office,
subject to a favorable vote of a majority of the outstanding voting securities,
as defined in the 1940 Act, Shares of each Series voting separately by Series.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall in accordance with such procedures
as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders, in conformity with the
provisions of subsection (e) of Section 4.2.
23
Section 8.2 Reorganization. The Trustees may sell, convey and transfer
the assets of the Trust, or the assets belonging to any one or more Series, to
another trust, partnership, association or corporation organized under the laws
of any state of the United States, or to the Trust to be held as assets
belonging to another Series of the Trust, in exchange for cash, shares or other
securities (including, in the case of a transfer to another Series of the Trust,
Shares of such other Series) with such transfer being made subject to, or with
the assumption by the transferee of, the liabilities belonging to each Series
the assets of which are so transferred; provided, however, that if Shareholder
approval is required by the 1940 Act, no assets belonging to any particular
Series shall be so transferred unless the terms of such transfer shall have
first been approved at a meeting called for the purpose by the affirmative vote
of the holders of a majority of the outstanding voting securities, as defined in
the 1940 Act, of that Series. Following such transfer, the Trustees shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities belonging to and any other differences among the various
Series the assets belonging to which have so been transferred) among the
Shareholders of the Series the assets belonging to which have been so
transferred; and if all of the assets of the Trust have been so transferred, the
Trust shall be terminated.
Section 8.3 Amendments. All rights granted to the Shareholders under
this Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or repeal the prohibition of assessment upon the Shareholders without the
express consent of each Shareholder or Trustee involved. Subject to the
foregoing, the provisions of this Declaration of Trust (whether or not related
to the rights of Shareholders) may be amended at any time by an instrument in
writing signed by a majority of the then Trustees (or by an officer of the Trust
pursuant to the vote of a majority of such Trustees), when authorized so to do
by the vote in accordance with subsection (e) of Section 4.2 of Shareholders
holding a majority of the Shares entitled to vote, except that amendments (a)
establishing and designating any new Series or Sub-Series of Shares not
established and designated in Section 4.2, (b) abolishing a Series or Sub-Series
at a time when there are no Shares thereof outstanding, (c) having the purpose
of changing the name of the Trust or the name of any Series or Sub-Series
theretofore established and designated, or (d) supplying any omission, curing
any ambiguity or curing, correcting or supplementing any provision hereof which
is internally inconsistent with any other provision hereof or which is defective
or inconsistent with the 1940 Act or with the requirements of the Internal
Revenue Code and applicable regulations for the Trust's obtaining the most
favorable treatment thereunder available to regulated investment companies,
24
shall not require authorization by Shareholder vote. Subject to the foregoing,
any such amendment shall be effective as provided in the instrument containing
the terms of such amendment or, if there is no provision therein with respect to
effectiveness, upon the execution of such instrument and of a certificate (which
may be a part of such instrument) executed by a Trustee or officer of the Trust
to the effect that such amendment has been duly adopted.
Section 8.4 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 the Boston City Clerk,
as well as any other governmental office where such filing may from time to time
be required, but the failure to make any such filing shall not impair the
effectiveness of this instrument or any such amendment. Anyone dealing with the
Trust may rely on a certificate by an officer of the Trust as to whether or not
any such amendments have been made, as to the identities of the Trustees and
officers, and as to any matters in connection with the Trust hereunder; and,
with the same effect as if it were the original, may rely on a copy certified by
an officer of the Trust to be a copy of this instrument or of any such
amendments. In this instrument and in any such amendment, references to this
instrument, and all expressions like "herein", "hereof" and "hereunder" shall be
deemed to refer to this instrument as a whole as the same may be amended or
affected by any such amendments. The masculine gender shall include the feminine
and neuter genders. Headings are placed herein for convenience of reference only
and shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. This instrument may be executed in
any number of counterparts each of which shall be deemed an original.
Section 8.5 Applicable Law. This Declaration of Trust is made in the
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth,
including the Massachusetts Business Corporation Law as the same may be amended
from time to time, to which reference is made with the intention that matters
not specifically covered herein or as to which an ambiguity may exist shall be
resolved as if the Trust were a business corporation organized in Massachusetts,
but the reference to said Business Corporation Law is not intended to give the
Trust, the Trustees, the Shareholders or any other person any right, power,
authority or responsibility available only to or in connection with an entity
organized in corporate form. The Trust shall be of the type referred to in
Section 1 of Chapter 182 of the Massachusetts General Laws and of the type
commonly called a Massachusetts business trust, and without limiting the
25
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals in the City of Boston, Massachusetts for themselves and their assigns, as
of the day and year first above written.
/s/ Xxxx X. Xxxxxx, Xx.
-----------------------
Xxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
-----------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxx Xxxxxx
-----------------------
Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxx
-----------------------
Xxxxxxx Xxxxx
C194/G
26
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
Then personally appeared the above-named Xxxx X. Xxxxxx, Xx. who
acknowledged the foregoing instrument to be his free act and deed, before me,
this 22nd day of December, 1980.
/s/ Xxxxx X. Xxxxxxxx
----------------------
Notary Public
XXXXX X. XXXXXXXX, Notary Public
My commission expires: Jan. 24, 1986
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
Then personally appeared the above-named Xxxxxx X. Xxxxxx who
acknowledged the foregoing instrument to be his free act and deed, before me,
this 22nd day of December, 1980.
/s/ Xxxxx X. Xxxxxxxx
----------------------
Notary Public
My commission expires:
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
Then personally appeared the above-named Xxxxxxx X. Xxxx who
acknowledged the foregoing instrument to be his free act and deed, before me,
this 22nd day of December, 1980.
----------------------
Notary Public
My commission expires:
27
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
Then personally appeared the above-named Xxxxxx Xxxxxx who
acknowledged the foregoing instrument to be his free act and deed, before me,
this 22nd day of December, 1980.
/s/ Xxxxx X. Xxxxxxxx
----------------------
Notary Public
XXXXX X. XXXXXXXX, Notary Public
My commission expires: Jan. 24, 1986
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
Then personally appeared the above-named Xxxxxxx Xxxxx who
acknowledged the foregoing instrument to be his free act and deed, before me,
this 22nd day of December, 1980.
/s/ Xxxxx X. Xxxxxxxx
----------------------
Notary Public
XXXXX X. XXXXXXXX, Notary Public
My commission expires: Jan. 24, 1986
C194/G
