THE TUSCARORA INVESTMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
THE TUSCARORA INVESTMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
Table of Contents
Page
RECITALS......................................................................1
ARTICLE I THE TRUST..................................................2
Section 1.1 Name...............................................2
Section 1.2 Principal Place of Business and Resident Agent.... 2
Section 1.3 Nature of Trust................................... 2
Section 1.4 Definitions....................................... 2
ARTICLE II PURPOSE OF THE TRUST................................... ..7
ARTICLE III POWERS OF THE TRUSTEES...................................7
Section 3.1 Powers in General..................................7
Section 3.2 Borrowings; Financings; Issuance of Securities....12
Section 3.3 Deposits..........................................13
Section 3.4 Allocations.......................................13
Section 3.5 Further Powers and Limitations....................13
ARTICLE IV TRUSTEES AND OFFICERS....................................14
Section 4.1 Number; Election; Term............................14
Section 4.2 Trustees' Meetings................................16
Section 4.3 Committees........................................16
Section 4.4 Officers..........................................16
Section 4.5 Compensation of Trustees and Officers.............17
Section 4.6 Ownership of Shares and Securities of the Trust...17
Section 4.7 Right of Trustees and Officers to Own Property or to
Engage in Business............................... 17
Section 4.8 Reliance on Experts.............................. 18
Section 4.9 Surety Bonds..................................... 18
Section 4.10 Apparent Authority of Trustees and Officers...... 18
Section 4.11 Other Relationships Not Prohibited............... 19
Section 4.12 Payment of Trust Expenses........................ 19
Section 4.13 Ownership of the Trust Property.................. 20
ARTICLE V DELEGATION OF MANAGERIAL RESPONSIBILITIES................ 20
Section 5.1 Appointment; Action by Less than All Trustees.... 20
Section 5.2 Certain Contracts................................ 21
ARTICLE VI FUNDS AND SHARES........................................ 23
Section 6.1 Description of Funds and Shares.................. 23
Section 6.2 Establishment and Designation of Certain Funds;
General Provisions for All Funds................. 24
Section 6.3 Ownership of Shares.............................. 28
Section 6.4 Investments in the Trust......................... 29
Section 6.5 No Preemptive or Appraisal Rights................ 29
Section 6.6 Status of Shares................................. 29
ARTICLE VII SHAREHOLDERS' VOTING POWERS AND MEETINGS............... 29
Section 7.1 Voting Powers.....................................29
Section 7.2 Number of Votes and Manner of Voting; Proxies.....30
Section 7.3 Meetings..........................................30
Section 7.4 Record Dates......................................31
Section 7.5 Quorum and Required Vote..........................32
Section 7.6 Action by Written Consent.........................32
Section 7.7 Inspection of Records.............................32
Section 7.8 Additional Provisions.............................32
ARTICLE VIII LIMITATION OF LIABILITY; INDEMNIFICATION..............32
Section 8.1 Trustees and Shareholders Not Personally Liable...32
Section 8.2 Trustees' Good Faith Action.......................33
Section 8.3 Indemnification of Shareholders...................33
Section 8.4 Indemnification of Trustees and Officers......... 34
Section 8.5 Compromise Payment............................... 35
Section 8.6 Indemnification Not Exclusive.................... 35
Section 8.7 Liability of Third Persons Dealing with Trustees. 36
ARTICLE IX DURATION; REORGANIZATION; AMENDMENTS................. 36
Section 9.1 Duration and Termination of Trust................ 36
Section 9.2 Reorganization................................... 36
Section 9.3 Amendments....................................... 37
Section 9.4 Filing of Copies of Declaration and Amendments... 38
ARTICLE X MISCELLANEOUS........................................ 39
Section 10.1 Governing Law.................................... 39
Section 10.2 Counterparts..................................... 39
Section 10.3 Reliance by Third Parties........................ 39
Section 10.4 References; Headings............................. 39
SIGNATURES AND ACKNOWLEDGEMENTS. . . . . . . . . . . . . . . . . . . . . . ..40
AGREEMENT AND DECLARATION OF TRUST OF
THE TUSCARORA INVESTMENT TRUST
This AGREEMENT AND DECLARATION OF TRUST, made at Boston, Massachusetts, this 3rd
day of March, 1995, by the Trustee whose signature is set forth below (the
"Initial Trustee"),
WITNESSETH THAT:
WHEREAS, it is intended that the trust established hereby (the "Trust") will
carry on the business of an investment company, and as such of buying, selling,
investing in or otherwise dealing in and with stocks, bonds, debentures,
warrants and other securities, and interests therein, or calls or puts with
respect to any of the same, or financial futures contracts, or such other and
further investment media and other property as the Trustees may deem advisable,
which are not prohibited by law or the terms of this Declaration; and
WHEREAS, the Initial Trustee has accepted such sum, together with any and all
additions thereto and the income or increments thereof, upon the terms,
conditions and trusts hereinafter set forth; and
WHEREAS, the assets held by the Trustees may be divided into separate Funds,
each with its own separate investment portfolio and investment objectives,
policies and purposes, and the beneficial interest in each such Fund shall be
divided into transferable Shares, there being a separate Series of Shares for
each Fund, all in accordance with the provisions hereinafter set forth; and
WHEREAS, it is desired that the Trust be managed and operated as a trust with
transferrable shares under the laws of Massachusetts, of the type commonly known
and referred to as a Massachusetts business trust, in accordance with the
provisions hereinafter set forth; and
NOW, THEREFORE, the Initial Trustee, for himself and his successors as Trustees,
hereby declares, and agrees with the Settlor, for himself and for all persons
who shall hereafter become holders of Shares of Beneficial Interest of the
Trust, of any Series, that the Trustees will hold the sum delivered to them upon
the execution hereof, and thereafter from time to time, and all other and
further cash, Securities and other property of every type and description which
they may in any way acquire in their capacity as such Trustees, together with
the income there from and the proceeds thereof, IN TRUST, to manage and dispose
of the same for the benefit of the holders from time to time of the
1
Shares of the several Series being issued and to be issued hereunder and in the
manner and subject to the provisions hereof, to wit:
ARTICLE I THE TRUST
Section 1.1 Name. The name of the Trust shall be "The Tuscarora Investment
Trust," and so far as may be practicable the Trustees shall conduct the Trust's
activities, execute all documents and enter into legal action, if any, under
that name, which name (and the word "Trust" wherever used in this Agreement and
Declaration of Trust, except where the context otherwise requires) shall refer
to the Trustees in their capacity as Trustees, and not individually or
personally, and shall not refer to the officers, agents or employees of the
Trust or of such Trustees, or to the holders of the shares of Beneficial
Interest of the Trust, of any Series. If the Trustees determine that the use of
such name is not practicable, legal or convenient at any time or in any
jurisdiction, or if the Trust is required to discontinue the use of such name
pursuant to Section 10.5 hereof, then subject to that Section, the Trustees may
use such other designation, or they may adopt such other name for the Trust as
they deem proper, and the Trust may hold property and conduct its activities
under such designation or name.
Section 1.2 Principal Place of Business and Resident Agent. The principal
place of business of the Trust shall be 0000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxx Xxxxxxxx 00000, unless changed by the Trustees to another location in
another jurisdiction within the United States, but such office need not be the
sole or principal office of the Trust. The Trust may have such other offices or
places of business as the Trustees may from time to time determine to be
necessary or expedient. The Trust's resident agent in Massachusetts is CT
Corporation System, 0 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Section 1.3 Nature of Trust. The Trust shall be a trust with transferrable
shares under the laws of The Commonwealth of Massachusetts, of the type referred
to in Section 1 of Chapter 182 of the Massachusetts General Laws and commonly
known as a Massachusetts business trust. The Trust is not intended to be, shall
not be deemed to be, and shall not be treated as, a general partnership, limited
partnership, limited liability company, joint venture, corporation or joint
stock company. The Shareholders shall be beneficiaries and their relationship to
the Trustees shall be solely in that capacity in accordance with the rights
conferred upon them hereunder.
Section 1.4 Definitions. As used in this Agreement and Declaration of Trust,
the following terms shall have the meanings set forth below unless the context
thereof otherwise requires:
"Accounting Agent" shall have the meaning designated in Section 5.2(g) hereof.
"Administrator" shall have the meaning designated in Section 5.2(b) hereof.
"Affiliated Person" shall have the meaning designated in the 1940 Act.
"Bylaws" shall mean the Bylaws of the Trust, as amended from time to time.
"Certificate of Designation" shall have the meaning designated in Section 6.1
hereof.
"Certificate of Termination" shall have the meaning designated in Section 6.1
hereof.
"Commission" shall have the meaning designated in the 1940 Act.
"Contracting Party" shall have the meaning designated in the preamble to Section
5.2 hereof.
"Covered Person" shall have the meaning designated in Section 8.4 hereof.
"Custodian" shall have the meaning designated in Section 5.2(d) hereof.
"Declaration" and "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended and restated, and all amendments or
modifications thereof as from time to time in effect. References in this
Agreement and Declaration of Trust to "hereof," "herein" and "hereunder" shall
be deemed to refer to the Declaration of Trust generally, and shall not be
limited to the particular text, Article or Section in which such words appear.
"Disabling Conduct" shall have the meaning designated in Section 8.4 hereof.
"Distributor" shall have the meaning designated in Section 5.2(c) hereof.
"Dividend Disbursing Agent" shall have the meaning designated in Section 5.2(e)
hereof.
"Fund" or "Funds" shall mean one or more of the separate components of the
assets of the Trust which are now or hereafter established and designated under
or in accordance with the provisions of Article VI hereof.
"Fund Assets" shall have the meaning designated in Section 6.2(a) hereof.
"General Items" shall have the meaning designated in Section 6.2(a) hereof.
"Initial Trustee" shall have the meaning designated in the Preamble hereto.
"Investment Adviser" shall have the meaning designated in Section 5.2(a) hereof.
"Majority of the Trustees" shall mean a majority of the Trustees in office at
the time in question. At any time at which there shall be only one (1) Trustee
in office, such phrase shall mean such Trustee.
"Majority Shareholder Vote," as used with respect to the election of any Trustee
at a meeting of Shareholders, shall mean the vote for the election of such
Trustee of a plurality of all outstanding Shares, without regard to Series,
represented in person or by proxy and entitled to vote thereon, provided that a
quorum (as determined in accordance with Section 7.5 hereof) is present, and as
used with respect to any other action required or permitted to be taken by
Shareholders, shall mean the vote for such action of the holders of that
majority of outstanding Shares (or where a separate vote of Shares of any
particular Series is to be taken the affirmative vote of that majority of the
outstanding Shares of that Series) which consists of: (i) a majority of all
Shares (or of all Shares of the particular Series) represented in person or by
proxy and entitled to vote on such action at the meeting of Shareholders at
which such action is to be taken, provided that a quorum (as determined in
accordance with Section 7.5 hereof) is present; or (ii) if such action is to be
taken by written consent of Shareholders, a majority of all outstanding Shares
(or of all outstanding Shares of the particular Series) entitled to vote on such
action; provided, further, that (iii) as used with respect to any action
requiring the affirmative vote of "a majority of the outstanding voting
securities," as the quoted phrase is defined in the 1940 Act, of the Trust or of
any Fund, "Majority Shareholder Vote" shall mean the vote for such action at a
meeting of Shareholders of the smallest majority of all outstanding Shares of
the Trust (or the particular Series) entitled to vote on such action which
satisfies such 1940 Act voting requirement.
"1940 Act" shall mean the provisions of the Investment Company Act of 1940 and
the rules and regulations thereunder, both as amended from time to time, and any
order or orders thereunder which may from time to time be applicable to the
Trust.
"Person" shall mean and include individuals as well as corporations, limited
partnerships, limited liability companies, general partnerships, joint stock
companies, joint ventures, associations, banks, trust companies, business trusts
or any other organizations or entities whatsoever established under the laws of
any jurisdiction, whether or not considered to be legal entities, and
governments and agencies and political subdivisions thereof.
"Principal Underwriter" shall have the meaning designated in Section 5.2(c)
hereof.
"Prospectus," as used with respect to any Fund or Series of Shares, shall mean
the prospectus relating to such Fund or Series which constitutes part of the
currently effective Registration Statement of the Trust under the Securities Act
of 1933, as such prospectus may be amended or supplemented from time to time.
"Securities" shall mean any and all bills, notes, bonds, debentures or other
obligations or evidences of indebtedness, certificates of deposit, bankers'
acceptances, commercial paper, repurchase agreements or other money market
instruments, stocks, shares or other equity ownership interests, and warrants,
options, futures, "when issued" or "delayed delivery" contracts, or other
instruments representing rights to subscribe for, purchase, receive or otherwise
acquire or to sell, transfer, assign or otherwise dispose of any scrip,
certificates, receipts or other instruments evidencing any ownership rights or
interests in, any of the foregoing, issued, guaranteed or sponsored by any
governments, political subdivisions or governmental authorities, municipalities
or instrumentalities, by any individuals, firms, companies, corporations,
syndicates, associations or trusts, or by any other organizations or entities
whatsoever, irrespective of their forms or the names by which they may be
described, whether or not they be organized and operated for profit, and whether
they be domestic or foreign with respect to The Commonwealth of Massachusetts or
the United States of America.
"Securities of the Trust" shall mean any Securities issued by the Trust.
"Series" shall mean one or more of the series of Shares authorized by the
Trustees to represent the beneficial interest in one or more of the Funds.
"Shareholder" shall mean as of any particular time any Person shown of record at
such time on the books of the Trust as a holder of outstanding Shares of any
Series.
"Shareholder Servicing Agent" shall have the meaning designated in Section
5.2(f) hereof.
"Shares" shall mean the transferable units into which the beneficial interest in
the Trust and each Fund of the Trust (as the context may require) shall be
divided from time to time, and includes fractions of Shares as well as whole
Shares. All references herein to "Shares" which are not accompanied by a
reference to any particular Series or Fund shall be deemed to apply to
outstanding Shares without regard to Series.
"Single Class Voting," as used with respect to any matter to be acted upon at a
meeting or by written consent of Shareholders, shall mean a style of voting in
which each holder of one or more Shares shall be entitled to one vote on the
matter in question for each Share standing in his name on the records of the
Trust, irrespective of Series, and all outstanding Shares of all Series shall
vote as a single class.
"Statement of Additional Information," as used with respect to any Fund or
Series of Shares, shall mean the statement of additional information relating to
such Fund or Series which constitutes part of the currently effective
Registration Statement of the Trust under the Securities Act of 1933, as
amended, as such statement of additional information may be amended or
supplemented from time to time.
"Transfer Agent" shall have the meaning designated in Section 5.2(e) hereof.
"Trust" shall have the meaning designated in the first "Whereas" clause set
forth above.
"Trust Property" shall mean, as of any particular time, any and all property
which shall have been transferred, conveyed or paid to the Trust or the
Trustees, and all interest, dividends, income, earnings, profits and gains
therefrom, and proceeds thereof, including any proceeds derived from the sale,
exchange or liquidation thereof, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, and which at
such time is owned or held by, or for the account of, the Trust or the Trustees,
without regard to the Fund to which such property is allocated.
"Trustees" shall mean, collectively, the Initial Trustee, so long as he shall
continue in office, and all other individuals who at the time in question have
been duly elected or appointed as Trustees of the Trust in accordance with the
provisions hereof and who have qualified and are then in office. At any time at
which there shall be only one (1) Trustee in office, such term shall mean such
single Trustee.
ARTICLE II PURPOSE OF THE TRUST
The purpose of the Trust shall be to engage in the business of being an
investment company, and as such of subscribing for, purchasing or otherwise
acquiring, holding for investment or trading in, borrowing, lending and selling
short, selling, assigning, negotiating or exchanging and otherwise disposing of,
and turning to account, realizing upon and generally dealing in and with, in any
manner, (i) Securities of all kinds, and (ii) precious metals and other
minerals, contracts to purchase and sell, and other interests of every nature
and kind, in such metals and minerals, and all investments as the Trustees in
their discretion shall determine to be necessary, desirable or appropriate, and
to exercise and perform any and every act, thing or power necessary, suitable or
desirable for the accomplishment of such purpose, the attainment of any of the
objects or the furtherance of any of the powers of a trust with transferrable
shares of the type commonly known as a Massachusetts business trust; and to do
every other act or acts or thing or things incidental or appurtenant to or
growing out of or in connection with the aforesaid objects, purposes or powers,
or any of them, which a trust of the type commonly known as a Massachusetts
business trust is not now or hereafter prohibited from doing, exercising or
performing.
ARTICLE III POWERS OF THE TRUSTEES
Section 3.1 Powers in General. The Trustees shall have, without other or further
authorization, full, entire, exclusive and absolute power, control and authority
over, and the management of, the business of the Trust and over the Trust
Property, to the same extent as if the Trustees were the sole owners of the
business and property of the Trust in their own right, and with such powers of
delegation as may be permitted by this Declaration, subject only to such
limitations as may be expressly imposed by this Declaration of Trust or by
applicable law. The enumeration of any specific power or authority herein shall
not be construed as limiting the aforesaid power or authority or any specific
power or authority. 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 By-Laws do not reserve that right to the Shareholders;
they may select, and from time to time change, the fiscal year of the Trust;
they may adopt and use a seal for the Trust, provided, that unless otherwise
required by the Trustees, it shall not be necessary to place the seal upon, and
its absence shall not impair the validity of any document, instrument or other
paper executed and delivered by or on behalf of the Trust.
The Trustees may from time to time in accordance with the provisions of Section
6.1 hereof establish one or more Funds to
which they may allocate such of the Trust Property, subject to such liabilities,
as they shall deem appropriate, each such Fund to be operated by the Trustees as
a separate and distinct investment portfolio and with separately defined
investment objectives and policies and distinct investment purposes, all as
established by the Trustees, or from time to time changed by them.
The Trustees 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; they may appoint from
their own number, and terminate any one or more committees consisting of one 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 5.2 hereof they may employ one or more
Investment Advisers, Administrators and Custodians and may authorize any
Custodian to employ subcustodians or agents and to deposit all or any part of
the securities held by the Trust in a system or systems for the central handling
of securities, retain Transfer, Dividend Disbursing, Accounting or Shareholder
Servicing Agents or any of the foregoing, provide for the distribution of shares
through one or more Distributors or Principal Underwriters, or otherwise.
The Trustees may set record dates or times for the determination of Shareholders
entitled to participate in, benefit from or act with respect to various matters.
In general the Trustees, consistent with their ultimate responsibility to
supervise the affairs of the Trust, may delegate to any officer of the Trust, to
any committee of the Trustees and to any employee, Investment Adviser,
Administrator, Distributor, Custodian, Transfer Agent, Dividend Disbursing,
Accounting or Shareholder Servicing Agents, 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 and power an 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.
Any determination as to what is in the interests of the Trust made by the
Trustees in good faith shall be conclusive.
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
forming part of the Trust Property; to buy, for cash or on margin, and
otherwise acquire and hold, securities created or issued by any
Persons, including securities maturing after the possible termination
of the Trust; to make payment therefor in any lawful manner in exchange
for any of the Trust 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 lend, sell, exchange, mortgage, pledge,
hypothecate, grant security interests in, encumber, negotiate, convey,
transfer or otherwise dispose of and to trade in, any and all of the
Trust Property, free and clear of all trusts, for cash or on terms,
with or without advertisement, and on such terms as to payment,
security or otherwise, all as they shall deem necessary or expedient;
(c) Ownership Powers. To vote or give assent, or exercise any and all
other rights, powers and privileges of ownership with respect to, and
to perform any and all duties and obligations as owners of, any
securities or other property forming part of the Trust Property, the
same as any individual might do; to exercise powers and rights of
subscription or otherwise which in any manner arise out of ownership of
Securities, and to receive powers of attorney from, and to execute and
deliver proxies or powers of attorney to, such person or persons as the
Trustees shall deem to be giving from or granting to such person or
persons such power and discretion with relation to Securities or other
property forming part of the Trust Property, all as they shall deem
proper;
(d) Form of Holding. To hold any Security or other property, whether
in bearer, unregistered or other negotiable form, or in the name of the
Trustees or of the Trust or of the Fund to which such Securities or
other property have been assigned, or in the name of a Custodian or
other nominee or nominees, or otherwise, upon such terms, in such
manner or with such powers as the Trustees may determine and with or
without indicating any trust or the interest of the Trustees therein;
(e) Reorganization. To consent to or participate in any plan for the
reorganization, consolidation or merger of any issuer, any Security of
which is or was held in the Trust or any Fund; to consent to any
contract, lease, mortgage, purchase or sale of property by any such
issuer; and to pay calls or subscriptions with respect to any Security
forming part of the Trust Property;
(f) Voting Trusts. To join with other holders of any securities in
acting through a committee, depository, voting trustee or otherwise,
and in that connection to deposit any Security with, or transfer any
Security to, any such committee, depository or trustee, and to delegate
to them such power and authority with relation to any Security (whether
or not so deposited or transferred) as the Trustees shall deem proper,
and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depository or trustee as the Trustees
shall deem proper;
(g) Contracts. To enter into, make and perform all such obligations,
contracts, agreements and undertakings of every kind and description,
with any person or persons, as the Trustees shall in their discretion
deem expedient in the conduct of the business of the Trust, for such
terms as they shall see fit, whether or not extending beyond the term
of office of the Trustees, or beyond the possible expiration of the
Trust; to amend, extend, release or cancel any such obligations,
contracts, agreements or understandings; and to execute, acknowledge,
deliver and record all written instruments which they may deem
necessary or expedient in the exercise of their powers;
(h) 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 or pledge the Trust Property or any part thereof to secure any
part of or all such obligations;
(i) Compromise. To compromise, arbitrate or otherwise adjust claims
in favor of or against the Trust or any matter in controversy;
(j) Partnership. To enter into joint ventures, general or limited
partnerships, and any other combinations or associations;
(k) Insurance. To purchase and pay for entirely out of the Trust
Property such insurance as they may deem appropriate for the conduct of
the business of the Trust, including, without limitation, insurance
policies insuring the Trust Property and payment of distributions and
principal on Securities included in the Trust Property, and insurance
policies insuring the Shareholders, Trustees, officers, employees,
consultants, Investment Advisers, Administrators, Distributors,
Principal Underwriters, or other agents 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 indemnity any such
Person against such liability;
(l) Pensions. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out
pension, profit sharing, share bonus, share purchase, savings, thrift
and other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the
Trust;
(m) Power of Collection and Litigation. To collect, xxx for and
receive all sums of money coming due to the Trust, to employ counsel,
and to commence, engage in, prosecute, intervene in, join, defend,
compound, advise, adjust or abandon, in the name of the Trust, any and
all actions, suits, proceedings, disputes, claims, controversies,
demands or other litigation or legal proceedings relating to the Trust,
the business of the Trust, the Trust Property, or the Trustees,
officers, employees, agents and independent contractors of the Trust,
in their capacity as such, at law or in equity, or before any other
bodies or tribunals, and to compromise, arbitrate or otherwise adjust
any dispute to which the Trust may be a party, whether or not any suit
is commenced or any claim shall have been made or asserted;
(n) Issuance and Repurchase of Shares. To issue, sell, repurchase,
redeem, retire, cancel, acquire, hold, resell, reissue, dispose of,
transfer, and otherwise deal in Shares of any Series, and subject to
Article VI hereof, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares of any Series any of
the Fund Assets belonging to the Fund to which such Series relates,
whether constituting capital or surplus or otherwise, to the full
extent now or hereafter permitted by applicable law; provided that any
Shares belonging to the Trust shall not be voted, directly or
indirectly;
(o) Offices. To have one or more offices, and to carry on all or any
of the operations and business of the Trust, in any of the States,
Districts or Territories of the United States of America, and in any
and all foreign countries, subject to the laws of such State, District,
Territory or country;
(p) Expenses. To incur and pay any and all such expenses and charges as
they may deem advisable (including without limitation appropriate fees
to themselves as Trustees), and to pay all such sums of money for which
they may be held liable by way of damages, penalty, fine or otherwise;
(q) Agents. To retain and employ any and all such servants, agents,
employees, attorneys, brokers, investment advisers, accountants,
engineers, escrow agents, depositories, consultants, ancillary
trustees, custodians, agents for collection, insurers, banks and
officers, as they think best for the business of the Trust or any Fund,
to supervise and direct the acts of any of the same, and to fix and pay
their compensation and define their duties;
(r) Accounts. To determine, and from time to time change,
the method or form in which the accounts of the Trust shall
be kept;
(s) Valuation. Subject to the requirements of the 1940 Act, to
determine from time to time the value of all or any part of the Trust
Property and of any services, Securities, property or other
consideration to be furnished to or acquired by the Trust, and from
time to time to revalue all or any part of the Trust Property in
accordance with such appraisals or other information as is, in the
Trustees' sole judgment, necessary and satisfactory;
(t) Indemnification. In addition to the mandatory indemnification
provided for in Article VIII hereof and to the extent permitted by law,
to indemnity or enter into agreements with respect to indemnification
with any person with whom the Trust has dealings, including, without
limitation, any independent contractor, to such extent as the Trustees
shall determine; and
(u) General. To do all such other acts and things and to conduct,
operate, carry on and engage in such other lawful businesses or
business activities as they shall in their sole and absolute discretion
consider to be incidental to the business of the Trust or any Fund, and
to exercise all powers which they shall in their discretion consider
necessary, useful or appropriate to carry on the business of the Trust
or any Fund, to promote any of the purposes for which the Trust is
formed, whether or not such things are specifically mentioned herein,
in order to protect or promote the interests of the Trust or any Fund,
or otherwise to carry out the provisions of this Declaration.
Section 3.2 Borrowings; Financings; Issuance of Securities.
Subject to the requirements of the 1940 Act, the Trustees shall have power
to borrow or in any other manner raise such sum or
sums of money, and to incur such other indebtedness for goods or services, or
for or in connection with the purchase or other acquisition of property, as they
shall deem advisable for the purposes of the Trust, in any manner and on any
terms, and to evidence the same by negotiable or non-negotiable securities which
may mature at any time or times, even beyond the possible date of termination of
the Trust; to mortgage and pledge the assets of the Trust or any portion thereof
to secure obligations arising in connection with such indebtedness; to issue
securities of any type for such cash, property, services or other consideration,
and at such time or times and upon such terms, as they may deem advisable; and
to reacquire any such securities. Any such securities of the Trust may, at the
discretion of the Trustees, be made convertible into Shares of any Series, or
may evidence the right to purchase, subscribe for or otherwise acquire Shares of
any Series, at such times and on such terms as the Trustees may prescribe.
Section 3.3 Deposits. Subject to the requirements of the 1940 Act, the Trustees
shall have power to deposit any moneys or securities included in the Trust
Property with any one or more banks, trust companies or other banking
institutions, whether or not such deposits will draw interest. Such deposits are
to be subject to withdrawal in such manner as the Trustees may determine, and
the Trustees shall have no responsibility for any loss which may occur by reason
of the failure of the bank, trust company or other banking institution with
which any such moneys or securities have been deposited, other than liability
based on their gross negligence or willful fault.
Section 3.4 Allocations. The Trustees shall have power to determine whether
moneys or other assets received by the Trust shall be charged or credited to
income or capital, or allocated between income and capital, including the power
to amortize or fail to amortize any part or all specifically mentioned.
Section 3.5 Further Powers and Limitations. In construing the provisions of this
Declaration of Trust, the presumption shall be in favor of a grant of power to
the Trustees. The Trustees shall not be required to obtain any court order to
deal with the Trust Property. The Trustees may limit their right to exercise any
of their powers through express restrictive provisions in the instruments
evidencing or providing the terms for any Securities
13
of the Trust or in other contractual instruments adopted on
behalf of the Trust.
ARTICLE IV TRUSTEES AND OFFICERS
Section 4.1 Number; Election; Term.
(a) Initial Trustee. Upon his execution of this Declaration of this
Trust, the individual whose signature was affixed thereto as Initial Trustee
became the Initial Trustee hereof.
(b) Number. A Majority of the Trustees may increase or decrease 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 Trustees may
be decreased in conjunction with the removal of a Trustee pursuant to subsection
(e) of this Section 4.1.
(c) Term. Subject to the 1940 Act, the Trustees shall have the power to
set and alter the terms of office of the Trustees, and at any time to lengthen
or shorten their own terms or make their terms of unlimited duration, to elect
their own successors and, pursuant to subsection (f) of this Section 4.1, to
appoint Trustees to fill vacancies; provided, that if at any time less than a
majority of the Trustees then holding office were elected by a Majority
Shareholder Vote, the Trustees shall forthwith cause to be held as promptly as
possible, and in any event within 60 days, a meeting of Shareholders for the
purpose of electing Trustees to fill any existing vacancies.
(d) Resignation and Retirement. Any Trustee may resign or retire as a
Trustee, by a 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: (i) by written instrument, signed by at least two-thirds (2/3) of the
number of Trustees prior to such removal shall become effective; or (ii) by vote
of Shareholders holding not less than two-thirds (2/3) of all outstanding Shares
of the Trust without regard to Series, cast in person or by proxy at any meeting
called for the purpose; or (iii) by a written declaration signed by Shareholders
holding not less than two-thirds (2/3) of all outstanding Shares of the Trust
without regard to Series and filed with the Trust's Custodian.
(f) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including an increase in the number of
14
Trustees, may (but unless required by the 1940 Act need not) be filled by a
Majority of the Trustees, subject to the provisions of the 1940 Act, through the
appointment of such other individual as such remaining Trustees in their
discretion shall determine; provided, that if there shall be no Trustees in
office, such vacancy or vacancies shall be filled by Majority Shareholder Vote.
Any such appointment or election shall take effect immediately, except that any
such appointment or election in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in the 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 the number of Trustees.
(g) Acceptance of Trust. Whenever any conditions to the appointment or
election of any individual as a Trustee hereunder who was not, immediately prior
to such election, acting as a Trustee shall have been satisfied, such individual
shall become a Trustee and the Trust Property shall vest in the new Trustee,
together with the continuing Trustees, without any further act or conveyance.
Such new Trustee shall accept such appointment or election in writing and agree
in such writing to be bound by the provisions hereof, but the execution of such
writing shall not be requisite to the effectiveness of the appointment or
election of a new Trustee.
(h) Effect of Death, Resignation, etc. No vacancy, whether resulting
from the death, resignation, retirement, removal or incapacity of any Trustee,
an increase in the number of Trustees or otherwise, shall operate to annul or
terminate the Trust hereunder or to revoke or terminate any existing agency or
contract created or entered into pursuant to the terms of this Declaration of
Trust. Until such vacancy is filled as provided in this Section 4.1, the
Trustees in office (if any), regardless of their number, shall have all the
powers granted to the Trustees and shall discharge all the duties imposed upon
the Trustees by this Declaration.
(i) Conveyance. In the event of the resignation or removal of a Trustee
or his otherwise ceasing to be a Trustee, such former Trustee or his legal
representative shall, upon request of the continuing Trustees, execute and
deliver such documents as may be required for the purpose of consummating or
evidencing the conveyance to the Trust or the remaining Trustees of any Trust
Property held in such former Trustee's name, but the execution and delivery of
such documents shall not be requisite to the vesting of title to the Trust
property in the remaining Trustees, as provided in subsection (g) of this
Section 4.1 and in Section 4.13 hereof.
(j) Accounting by Former Trustee. Except to the extent required by the
1940 Act or under circumstances that would
15
justify his removal for cause, no person ceasing to be a Trustee (nor the estate
of any such person) shall be required to make an accounting to the Shareholders
or remaining Trustees upon such cessation.
(k) Filings. Whenever there shall be a change in the composition of the
Trustees, the Trust shall cause to be filed in the office of the Secretary of
The Commonwealth of Massachusetts, and in each other place where the Trust is
required to file amendments to this Declaration, a certificate executed by a
Trustee or officer of the Trust as to the fact of the appointment or election of
an individual who was not theretofore a Trustee or as to the resignation,
removal or death of a Trustee, but the filing of such certificate shall not be
requisite to the effectiveness of any such appointment, election, resignation or
removal of a Trustee.
Section 4.2 Trustees' Meetings. An annual meeting of Trustees shall be held
not later than the last day of the fourth month after the end of each fiscal
year of the Trust, and special meetings may be held from time to time, in each
case, upon the call of such officers as may be thereunto authorized by the
By-Laws or vote of the Trustees, or by any two (2) Trustees, or pursuant to a
vote of the Trustees adopted at a duly constituted meeting of the Trustees, and
upon such notice as shall be provided in the Bylaws. The Trustees may act with
or without a meeting, and a written consent to any matter, signed by a Majority
of the Trustees, shall be equivalent to action duly taken at a meeting of the
Trustees, duly carried and held. Except as otherwise provided by the 1940 Act
or other applicable law, or by this Declaration of Trust or the Bylaws, 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, being present), within or without Massachusetts. If authorized
by the Bylaws, all or any one or more Trustees may participate in a meeting of
the Trustees or any committee thereof by means of conference telephone or
similar means of communication by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to such
means of communication shall constitute presence in person at such meeting. The
minutes of any meeting thus held shall be prepared in the same manner as a
meeting at which all participants were present in person.
Section 4.3 Committees. The Trustees shall have power, consistent with their
ultimate responsibility to supervise the affairs of the Trust, to delegate from
time to time to an executive committee, and to one or more other committees, or
to any single Trustee, or to any other person, the doing of such things and the
execution of such deeds or other instruments, either in the name of the Trust or
the names of the Trustees or
as their attorney or attorneys-in-fact, or otherwise as the Trustees may from
time to time deem expedient, and any agreement, deed, mortgage, lease or other
instrument or writing executed by the Trustee or Trustees or other person to
whom such delegation was made shall be valid and binding upon the Trustees and
upon the Trust.
Section 4.4 Officers. The Trustees shall annually elect such officers or
agents, who shall have such powers, duties and responsibilities as the Trustees
may deem to be advisable, and as they shall specify by resolution or in the
Bylaws. Except as may be provided in the Bylaws, any officer elected by the
Trustees may be removed at any time with or without cause. Any two (2) or more
offices may be held by the same individual.
Section 4.5 Compensation of Trustees and Officers. The Trustees shall fix
the compensation of all officers and Trustees. Without limiting the generality
of any of the provisions hereof, the Trustees shall be entitled to receive
reasonable compensation for their general services as such, and to fix the
amount of such compensation, and to pay themselves or any one or more of
themselves such compensation for special services, including legal, accounting,
or other professional services, as they in good faith may deem reasonable.
No Trustee or officer resigning and (except where a right to receive
compensation for a definite future period shall be expressly provided in a
written agreement with the Trust, duly approved by the Trustees) no Trustee or
officer removed shall have any right to any compensation as such Trustee or
officer for any period following his resignation or removal, or any right to
damages on account of his removal, whether his compensation be by the month,
by the year or otherwise.
Section 4.6 Ownership of Shares and Securities of the Trust. Any Trustee, and
any officer, employee or 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 and other Securities of the Trust for his or its individual account, and
may exercise all rights of a holder of such Shares or Securities to the same
extent and in the same manner as if such Person were not such a Trustee,
officer, employee or agent of the Trust; and the Trust may issue and sell or
cause to be issued and sold, and may purchase any such Shares or other
Securities 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 or other Securities of the Trust generally.
Section 4.7 Right of Trustees and Officers to Own Property or to Engage in
Business; Authority of Trustees to Permit Others to do Likewise. The Trustees,
in their capacity as Trustees, and (unless otherwise specifically directed by
vote of the Trustees)
the officers of the Trust in their capacity as such, shall not be required to
devote their entire time to the business and affairs of the Trust. Except as
otherwise specifically provided by vote of the Trustees, or by agreement in any
particular case, any Trustee or officer of the Trust may acquire, own, hold,
carry on and dispose of, for his own individual account, any business entity or
business activity, whether similar or dissimilar to any property or business
entity or business activity invested in or carried on by the Trust, and without
first offering the same as an investment opportunity to the Trust, and may
exercise all rights in respect thereof as if he were not a Trustee or officer of
the Trust. The Trustees shall also have power, generally or in specific cases,
to permit employees or agents of the Trust to have the same rights (or lesser
rights) to acquire, hold, own and dispose of property and businesses, to carry
on businesses, and to accept investment opportunities without offering them to
the Trust, as the Trustees have by virtue of this Section 4.7.
Section 4.8 Reliance on Experts. The Trustees and officers may consult with
counsel, brokers, appraisers, accountants, investment bankers, securities
analysts or other Persons (any of which may be a firm in which one or more of
the Trustees or officers is or are members or otherwise interested) whose
profession gives authority to a statement made by them on the subject in
question, and who are reasonably deemed by the Trustees or officers in question
to be competent, and the advice or opinion of such Persons shall be full and
complete personal protection to all of the Trustees and officers in respect of
any action taken or suffered by them in good faith and in reliance on or in
accordance with such advice or opinion. In discharging their duties, Trustees
and officers, when acting in good faith, may rely upon financial statements of
the Trust represented to them to be correct by any officer of the Trust having
charge of its books of account, or stated in a written report by an independent
certified public accountant fairly to present the financial position of the
Trust. The Trustees and officers may rely, and shall be personally protected in
taking action, upon any instrument or other document believed by them to be
genuine.
Section 4.9 Surety Bonds. No Trustee, officer, employee or agent of the Trust
shall, as such, be obligated to give any bond or surety or other security for
the performance of any of his duties, unless required by applicable law or
regulation, or unless the Trustees shall otherwise determine in any particular
case.
Section 4.10 Apparent Authority of Trustees and Officers. No purchaser,
lender, transfer agent or other Person dealing with the Trustees or any officer
of the Trust shall be bound to make any inquiry concerning the validity of any
transaction purporting to be made by the Trustees or by such officer, or to make
inquiry concerning or be liable for the application of money or property
paid, loaned or delivered to or on the order of the Trustees or of such officer.
Section 4.11 Other Relationships Not Prohibited. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, manager, member, partner, trustee,
employee, investment 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 any Contracting Party or
any parent or affiliate thereof is a shareholder or has an interest in
the Trust or any Fund, 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, limited liability companies, partnerships,
limited partnerships or other organizations, or have other businesses
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 to the Shareholders; provided, that in the case of any such
relationship or interest on the part of any Trustee or officer of the Trust,
either (x) the material facts as to such relationship or interest have been
disclosed to or are known by the Trustees not having any such relationship or
interest and the contract involved is approved in good faith by a majority of
such Trustees not having any such relationship or interest (even though such
unrelated or disinterested Trustees are less than a quorum of all the Trustees),
(y) the material facts as to such relationship or interest and as to the
contract have been disclosed to or are known by the Shareholders entitled to
vote thereon and the contract involved is specifically approved in good faith by
vote of the Shareholders, or (z) the specific contract involved is fair to the
Trust as of the time it is authorized, approved or ratified by the Trustees or
by the Shareholders.
Section 4.12 Payment of Trust Expenses. 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 according to any allocation to
particular Funds made by them pursuant to Section 6.2(b) hereof, all expenses,
fees, charges, taxes and liabilities incurred or arising in connection with the
business and affairs of 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 or Principal Underwriter, auditor, counsel, Custodian, Transfer
Agent, Dividend Disbursing Agent, Accounting Agent, Shareholder Servicing Agent,
and such other agents, consultants, and independent contracts and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
Section 4.13 Ownership of the Trust Property. Legal title to all the Trust
Property shall be vested in the Trustees as joint tenants, except that the
Trustees shall have power to cause legal title to any Trust Property to be held
by or in the name of one or more of the Trustees, or in the name of the Trust,
or of any particular Fund, or in the name of any other Person as nominee, on
such terms as the Trustees may determine; provided, that the interest of the
Trust and of the respective Fund therein is appropriately protected. The right,
title and interest of the Trustees in the Trust Property shall vest
automatically in each person who may hereafter become a Trustee. Upon the
termination of the term of office of a Trustee as provided in Section 4.1(c),
(d) or (e) hereof, such Trustee shall automatically cease to have any right,
title or interest in any of the Trust Property, and the right, title and
interest of such Trustee in the Trust Property shall vest automatically in the
remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to Section 4.1(i) hereof.
ARTICLE V DELEGATION OF MANAGERIAL RESPONSIBILITIES
Section 5.1 Appointment; Action by Less than All Trustees. The Trustees
shall be responsible for the general operating policy of the Trust and for the
general supervision of the business of the Trust conducted by officers, agents
or employees of the Trust or by independent contractors, but the Trustees shall
not be required personally to conduct all the business of the Trust and,
consistent with their ultimate responsibility as stated herein, the Trustees
may appoint employ or contract with one or more officers, employees or agents
to conduct, manage or supervise the operations of the Trust, and may grant or
delegate such authority to such officers, employees or agents as the Trustees
may, in their discretion, deem to be necessary or desirable, without regard to
whether such authority is normally granted or delegated by trustees. With
respect to those matters of the operation and business of the Trust that they
shall elect to conduct themselves, except as otherwise provided by this
Declaration or the Bylaws, if any, the Trustees may authorize a single Trustee
or defined group of Trustees or any committee consisting of a number of Trustees
less than the whole number of Trustees then in office without specification of
the particular Trustees required to be included therein, to act for and to bind
the Trust, to the same extent as the whole number of Trustees
could do, either with respect to one or more particular matters or classes of
matters.
Section 5.2 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 in their discretion 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, limited liability companies, partnerships, limited partnerships,
or other organizations or individuals (any such person being herein referred to
as a "Contracting Party"), to provide for the performance and assumption of some
or all of the following services, duties and responsibilities to, for or on
behalf of the Trust or any Fund, 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 deem appropriate:
(a) Advisory. An agreement whereby an investment adviser registered
under the Investment Advisers Act of 1940, as amended, shall undertake to
furnish the Trust or any Fund such management, investment advisory or
statistical and research facilities and services, and such other facilities and
services, if any, as the Trustees shall from time to time consider desirable,
all upon such terms and conditions as the Trustees may in their discretion
determine to be not inconsistent with this Declaration, the applicable
provisions of the 1940 Act or any applicable provisions of the Bylaws (any such
investment adviser being herein referred to as an "Investment Adviser"). Any
such advisory or management agreement and any amendment thereto shall be subject
to approval by a Majority Shareholder Vote at a meeting of the Shareholders of
the Trust. Notwithstanding any provisions of this Declaration, the Trustees may
authorize an Investment Adviser (subject to such general or specific
instructions as the Trustees may from time to time adopt) to effect purchases,
sales, loans or exchanges pursuant to recommendations of an Investment Adviser
(and all without further action by the Trustees). Any such purchases, sales,
loans and exchanges shall be deemed to have been authorized by all the Trustees.
The Trustees may, in their sole discretion, call a meeting of Shareholders in
order to submit to a vote of Shareholders at such meeting the approval of
continuance of any such investment advisory or management agreement. If the
Shareholders of any Fund should fail to approve any such investment advisory or
management agreement, the Investment Adviser may nonetheless serve as Investment
Adviser with respect to any other Fund whose Shareholders shall have approved
such contract.
(b) Administration. An agreement whereby an agent, 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 and each Fund, will
supervise all or any part of the operations of the Trust and each Fund, and will
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 and each Fund (any such agent being
herein referred to as an "Administrator").
(c) Distribution. An agreement providing for the sale of shares of any
one or more Series to net the Trust not less than the net asset value per Share
(as described in Section 6.2(h) hereof) and pursuant to which the Trust may
appoint the other party to such agreement as its principal underwriter or sales
agent for the distribution of such Shares. The agreement shall contain such
terms and conditions as the Trustees may in their discretion determine to be not
inconsistent with this Declaration, the applicable provisions of the 1940 Act
and any applicable provisions of the Bylaws (any such agent being herein
referred to as a "Distributor" or a "Principal Underwriter," as the case may
be).
(d) Custodian. An agreement appointing a bank or trust company having
an aggregate capital surplus and undivided profits (as shown in its last
published report) of at least two million dollars ($2,000,000), and meeting the
requirements of Section 17(f) of the 1940 Act as custodian of the Securities and
similar investments of the Trust or of any Fund and of the accounting records in
connection therewith (any such custodian being herein referred to as a
"Custodian").
(e) Transfer and Dividend Disbursing Agent. An agreement with an agent
to maintain records of the ownership of outstanding shares, the issuance and
redemption and the transfer thereof (any such agent being herein referred to as
a "Transfer Agent"), and to disburse any dividends declared by the Trustees and
in accordance with the policies of the Trustees or the instructions of any
particular Shareholder to reinvest any such dividends (any such agent being
herein referred to as a "Dividend Disbursing Agent").
(f) Shareholder Servicing. An agreement with an agent 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 (any
such agent being herein referred to as a "Shareholder Servicing Agent").
(g) Accounting. An agreement with an agent to handle all or any
part of the accounting responsibilities, whether with
respect to the Trust Property, Shareholders or otherwise (any such agent being
herein referred to as an "Accounting Agent").
The same person may be a Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust 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 from entering into subcontractual arrangements relative to any
of the matters referred to in subsections (a) through (g) of this Section 5.2.
ARTICLE VI FUNDS AND SHARES
Section 6.1 Description of Funds and Shares.
(a) Shares; Funds; Series of Shares. The beneficial interest in the
Trust shall be divided into Shares having no par value, and all of one class
(except as provided in Section 6.2(c) for the separate payment of dividends by
each Fund), of which an unlimited number may be issued. The Trustees shall have
the authority from time to time to establish and designate one or more separate,
distinct and independent Funds into which the assets of the Trust shall be
divided, and to authorize a separate Series of Shares for each such Fund (each
of which Series, including without limitation the Series authorized in Section
6.2 hereof, shall represent interests only in the Fund with respect to which
such Series was authorized), as they deem necessary or desirable. Except as
otherwise provided as to a particular Fund herein, or in the Certificate of
Designation therefor, the Trustees shall have all the rights and powers, and be
subject to all the duties and obligations, with respect to each such Fund and
the assets and affairs as they have under this Declaration with respect to the
Trust and the Trust Property in general.
(b) Establishment of Funds; Authorization of Shares. The
establishment and designation of any Fund in addition to the Fund established
and designated in Section 6.2 hereof and the authorization of the Shares
thereof shall be effective upon the execution by a Majority of the Trustees (or
by an officer of the Trust pursuant to the vote of a Majority of the Trustees)
of an instrument setting forth such establishment and designation and the
relative rights and preferences of the Shares of such Fund and the manner in
which the same may be amended (a "Certificate of Designation"). A Certificate
of Designation may provide that the number of Shares of any such Series which
may be issued is unlimited, or may limit the number issuable. At any time that
there are no Shares outstanding of any particular Fund previously established
and designated, including any Fund established and designated in Section 6.2
hereof, the Trustees may by an instrument (a "Certificate of Termination")
executed by a
Majority of the Trustees (or by an officer of the Trust pursuant to the vote of
a Majority of the Trustees) terminate such Fund and the establishment and
designation thereof and the authorization of its Shares.
(c) Character of Separate Funds and Shares Thereof. Each Fund
established hereunder shall be a separate component of the assets of the Trust,
and the holders of Shares of the Series representing the beneficial interest in
the assets of that Fund shall be considered Shareholders of such Fund, but such
Shareholders shall also be considered Shareholders of the Trust for purposes of
receiving reports and notices and, except as otherwise provided herein or in
the Certificate of Designation of a particular Fund as to such Fund, or as
required by the 1940 Act or other applicable law, the right to vote, all without
distinction by Series. The Trustees shall have exclusive power without the
requirement of Shareholder approval to establish and designate such separate and
distinct Funds, and to fix and determine the relative rights and preferences as
between the Shares of the respective Funds as to rights of redemption and the
price, terms and manner of redemption, special and relative rights as to
dividends and other distributions and on liquidation, sinking or purchase fund
provisions, conversion rights, and conditions under which the Shareholders of
the several Funds shall have separate voting rights or no voting rights.
(d) Consideration for Shares. The Trustees may issue Shares of any
Series for such consideration (which may include property subject to, or
acquired in connection with the assumption of, liabilities) and on such terms as
they may determine (or for no consideration if pursuant to a Share dividend or
split), 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 Section 6.2(h) hereof). The Trustees may classify or reclassify
any unissued Shares, or any Shares of any Series previously issued and
reacquired by the Trust, into Shares of one or more other Funds that may be
established and designated from time to time.
Section 6.2 Establishment and Designation of Certain Funds; General Provisions
for All Funds. Without limiting the authority of the Trustees set forth in
Section 6.1(a) hereof to establish and designate further Funds, it is hereby
established and designated the following Fund: Xxx Xxxxx Fund. The Shares of
such Fund, and the Shares of any further Funds that may from time to time be
established and designated by the Trustees shall (unless the Trustees otherwise
determine with respect to some further Fund at the time of establishing and
designating the same) have the following relative rights and preferences:
(a) Assets Belonging to Funds. Any portion of the Trust Property
allocated to a particular Fund, and all consideration received by the Trust for
the issue or sale of Shares of such Fund, together with all assets in which such
consideration is invested or reinvested, all interest, dividends, income,
earnings, profits and gains therefrom, and proceeds thereof, including any
proceeds derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall be held by the Trustees in trust for the benefit of
the holders of Shares of that Fund and shall irrevocably belong to that Fund for
all purposes, and shall be so recorded upon the books of account of the Trust,
and the Shareholders of such Fund shall not have, and shall be conclusively
deemed to have waived, any claims to the assets of any Fund of which they are
not Shareholders. Such consideration, assets, interest, dividends, income,
earnings, profits, gains and proceeds, together with any General Items allocated
to that Fund as provided in the following sentence, are herein referred to
collectively as "Fund Assets" of such Fund, and as assets "belonging to" that
Fund. If there are any assets, interest, dividends, income, earnings, profits,
gains and proceeds which are not readily identifiable as belonging to any
particular Fund (collectively "General Items"), the Trustees shall allocate such
General Items to and among any one or more of the Funds 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 Fund shall belong to and be part of the Fund Assets of that Fund.
Each such allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Funds for all purposes.
(b) Liabilities of Funds. The assets belonging to each particular
Fund shall be charged with the liabilities in respect of that Fund and all
expenses, costs, charges and reserves attributable to that Fund, and any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as pertaining to any particular Fund shall be allocated and
charged by the Trustees to and among any one or more of the Funds 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 indebtedness,
expenses, costs, charges and reserves allocated and so charged to a particular
Fund are herein referred to as "liabilities" of that Fund. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all Funds for all purposes. Any
creditor of any Fund may look only to the assets belonging to that Fund to
satisfy such creditor's debt.
(c) Dividends. Dividends and distributions on Shares of a
particular Fund 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 Shareholders of that Fund, from such of the income, accrued or
realized, and capital gains, realized or unrealized, and out of the assets
belonging to that Fund, as the Trustees may determine, after providing for
actual and accrued liabilities of that Fund. All dividends and distributions on
Shares of a particular Fund shall be distributed pro rata to the Shareholders of
that Fund in proportion to the number of such Shares held by such holders at the
date and time of record established for the payment of such dividends or
distributions. Such dividends and distributions may be made in cash, property or
Shares of that Fund, 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 shall be paid at the net asset value thereof as determined in accordance
with subsection (h) of this Section 6.2.
(d) Liquidation. In the event of the liquidation or dissolution of
the Trust, the Shareholders of each Fund of which Shares are outstanding shall
be entitled to receive, when, and as declared by the Trustees, the excess of the
Fund Assets over the liabilities of such Fund. The assets so distributable to
the Shareholders of any particular Fund shall be distributed among such
Shareholders in proportion to the number of Shares of that Fund held by them and
recorded on the books of the Trust. The liquidation of any particular Fund of
which Shares are outstanding may be authorized by a Majority of the Trustees.
(e) Voting. The Shareholders shall have the voting rights
set forth in or determined under Article VII hereof.
(f) Redemption by Shareholder. Each holder of Shares of a particular
Fund 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 Fund at a redemption price equal to the net asset
value per Share of that Fund next determined in accordance with subsection (h)
of this Section 6.2 after such Shares are properly tendered for redemption;
provided, that the Trustees may from time to time, in their discretion,
determine and impose a fee for such redemption. Payment of the redemption price
shall be in cash; provided, however, that if the Trustees determine, which
determination shall be conclusive, that conditions exist which make payment
wholly in cash unwise or undesirable, the Trust may make payment wholly or
partly in Securities or other assets belonging to such Fund 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 Fund to require
the Trust to redeem Shares of that Fund during any period or at any time when
and to the extent permissible under the 0000 Xxx.
(g) Redemption at the Option of the Trust. Each Share of any Fund
shall be subject to redemption at any time at the option of the Trust at the
redemption price which would be applicable if such Share were then being
redeemed by a Shareholder pursuant to subsection (f) of this Section 6.2: (i) if
the Trustees determine in their sole discretion that failure to so redeem may
have materially adverse consequences to the holders of Shares of the Trust or of
any Fund, or (ii) upon such other conditions with respect to maintenance of
Shareholder accounts of a minimum amount as may from time to time be determined
by the Trustees and set forth in the then current Prospectus or Statement of
Additional Information of such Fund. 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.
(h) Net Asset Value. The net asset value per Share of any Fund will
be calculated on each business day of the Trust as of the close of business, and
shall be the quotient obtained by dividing the value of the net assets of such
Fund at such time (being the current value of the assets belonging to such Fund,
less the then existing liabilities of such Fund) by the total number of Shares
of that Fund then outstanding, all determined in accordance with the methods and
procedures, including without limitation those with respect to pricing,
established by the Trustees from time to time. The Trustees may determine to
maintain the net asset value per share of any Fund at a designated constant
dollar amount and in connection therewith may adopt procedures not inconsistent
with the 1940 Act for the continuing declaration of income attributable to that
Fund as dividends payable in additional Shares of that Fund at the designated
constant dollar amount and for the handling of any losses attributable to that
Fund. Such procedures may provide that in the event of any loss each Shareholder
shall be deemed to have contributed to the shares of beneficial interest account
of that Fund his pro rata portion of the total number of Shares required to be
canceled in order to permit the net asset value per Share of that Fund to be
maintained, after reflecting such loss, at the designated constant dollar
amount. Each Shareholder of the Trust shall be deemed to have expressly agreed,
by his investment in any Fund 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.
(i) Transfer. All Shares of each particular Fund shall be
transferable, but transfers of Shares of a particular Fund shall
be recorded on the share transfer records of the Trust applicable to that Fund
only at such times as Shareholders have the right to require the Trust to redeem
Shares of that Fund and at such other times as may be permitted by the Trustees.
(j) Equality of Share Valuation. All Shares of each particular Fund
shall represent an equal proportionate interest in the assets belonging to that
Fund (subject to the liabilities of that Fund), and each Share thereof; but the
provisions of this sentence shall not restrict any distinctions permissible
under subsection (c) of this Section 6.2 that may exist with respect to
dividends and distributions on Shares of the same Fund. The Trustees may from
time to time divide or combine the Shares of any particular Fund into a greater
or lesser number of Shares of that Fund without thereby changing the
proportionate beneficial interest in the assets belonging to that Fund or in any
way affecting the rights of the holders of Shares of any other Fund.
(k) Rights of Fractional Shares. Any fractional Share of any Series
shall carry proportionately all the rights and obligations of a whole Share of
that Series, including rights and obligations with respect to voting, receipt of
dividends and distributions, redemption and liquidation.
(l) 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 Fund shall have the right to convert said Shares into Shares of
one or more other Funds in accordance with such requirements and procedures as
the Trustees may establish.
Section 6.3 Ownership of Shares. The ownership of Shares shall be recorded on
the books of the Trust or of a Transfer Agent or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series that
has been authorized. Certificates evidencing the ownership of Shares need not be
issued except as the Trustees may otherwise determine from time to time, and the
Trustees shall have power to call outstanding Share certificates and to replace
them with book entries. The Trustees may make such rules as they consider
appropriate for the issuance of share 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 Agent 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 Fund held from time to time by each such Shareholder.
The holders of Shares of each Fund shall upon demand disclose to the Trustees in
writing such information with respect to their direct and indirect ownership of
Shares of such Fund as the Trustees deem necessary to comply with the provisions
of the
Internal Revenue Code of 1986, as amended, or to comply with the requirements of
any other authority.
Section 6.4 Investments in the Trust. The Trustees may accept investments in
any Fund of 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 or
Principal Underwriter, Custodian, Transfer Agent or other Person to accept
orders for the purchase of Shares that conform to such authorized terms and to
reject any such orders, whether or not conforming to such authorized terms.
Section 6.5 No Preemptive or Appraisal Rights. No Shareholder, by virtue of
holding Shares of any Fund, shall have any appraisal, conversion or exchange
rights, nor any preemptive or other right to subscribe to any additional Shares
of that Fund, or to any Shares of any other Fund or any other Securities of the
Trust.
Section 6.6 Status of Shares. 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. Shares shall be deemed to be personal
property, giving only the rights provided herein. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or any part of the Trust
Property or any 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. The death of a Shareholder during the continuance of the Trust shall
not operate to terminate the Trust or any Fund, nor to 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 Declaration of Trust.
ARTICLE VII SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 7.1 Voting Powers. Shareholders shall have power to vote only (i)
for the election or removal of Trustees as provided in Sections 4.1(c) and (e)
hereof, (ii) with respect to the approval or termination of any contract as to
which Shareholder action is required by the 1940 Act, (iii) with respect to any
termination or reorganization of the Trust or any Fund to the extent and as
provided in Sections 9.1 and 9.2 hereof, (iv) with respect to any amendment of
this Declaration of Trust to the extent and as provided in Section 9.3 hereof,
(v) to the same extent as the stockholders of a Massachusetts business
corporation as to whether or not a court action, proceeding or claim should or
should not be brought or maintained derivatively or as a class action on behalf
of the Trust or any Fund, or the Shareholders of any of them (except that a
Shareholder of a
particular Fund shall not in any event be entitled to maintain a derivative or
class action on behalf of any other Fund or the Shareholders thereof), and (vi)
with respect to such additional matters as may be required by the 1940 Act, this
Declaration of Trust, the Bylaws, or any registration with the Commission or any
State, or as the Trustees may consider necessary or desirable. Each matter
required or permitted to be voted upon at a meeting or by written consent of
Shareholders shall be submitted to a separate vote of the outstanding Shares of
each Fund entitled to vote thereon; provided, that (i) when required by this
Declaration or by the 1940 Act, actions of Shareholders shall be taken by Single
Class Voting and (ii) when the Trustees determine that any matter to be
submitted to a vote of Shareholders affects only the rights or interests of
Shareholders of one or more but not all Funds, then only the Shareholders of the
Funds so affected shall be entitled to vote thereon.
Section 7.2 Number of Votes and Manner of Voting; Proxies. On each matter
submitted to a vote of the Shareholders, each holder of Shares of any Series
shall be entitled to a number of votes equal to the number of Shares of such
Series standing in his name on the books of the Trust. 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 (2) 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 Bylaws
to be taken by Shareholders.
Section 7.3 Meetings. Meetings of Shareholders may be called by the Trustees
from time to time for the purpose of taking action upon any matter requiring the
vote or authority of 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 (7) days before such meeting, postage
prepaid, stating the time, place and purpose of the meeting, to each Shareholder
entitled to vote or act at any such meeting at the Shareholder's address as it
appears on the records of the Trust. The Trustees shall promptly call and give
notice of a meeting of Shareholders when requested to do so in writing by
Shareholders holding not less than ten percent (10%) of the Shares then
outstanding and entitled to vote at any such meeting. If the Trustees shall fail
to call or give notice of any meeting of Shareholders for a period of thirty
(30) days after written application by such Shareholders, then
Shareholders holding at least ten percent (10%) of the Shares then outstanding
and entitled to vote at any such meeting may call and give notice of such
meeting, and thereupon the meeting shall be held in the manner provided for
herein in case of call thereof by the Trustees.
Whenever ten or more Shareholders of record who have been such for at least six
months preceding the date of application, and who hold in the aggregate either
Shares having a net asset value of at least $25,000 or at least one percent (1%)
of the outstanding Shares, whichever is less, shall apply to the Trustees in
writing, stating that they wish to communicate with other Shareholders with a
view to obtaining signatures to a request for a meeting pursuant to this section
7.3 and accompanied by a form of communication and request which they wish to
transmit, the Trustees shall, within five days after receipt of such application
either (i) afford to such applicants access to a list of the names and addresses
of all Shareholders as recorded on the books of the Trust or (ii) inform such
applicants as to the approximate number of Shareholders of record and the
approximate cost of mailing to them the proposed communication and form of
request. If the Trustees elect to follow the course of (ii), above, the
Trustees, upon the written request of such applicants, accompanied by a tender
of the material to be mailed and the reasonable expenses of mailing, shall, with
reasonable promptness, mail such material to all Shareholders of record at their
addresses as recorded on the books. If in the opinion of the Trustees, the
material to be mailed contains untrue statements of fact or omits to state facts
necessary to make the statements contained therein not misleading, or would be
in violation of applicable law, the Trustees may, within five business days and
in lieu of mailing the tendered material to Shareholders, request a hearing by
the Securities and Exchange Commission (the "Commission"), in accordance with
Section 16(c) of the 1940 Act, to decide the matter.
Section 7.4 Record Dates. For the purpose of determining the Shareholders who
are entitled to vote or act at any meeting or any adjournment thereat 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 thirty (30) days (except at or in connection with
the termination of the Trust), as the Trustees may determine; or without closing
the transfer books the Trustees may fix a date and time not more than ninety
(90) days prior to 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 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 (other than through redemption or repurchase by the
Trust), 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 7.5 Quorum and Required Vote. Fifty percent (50%) 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 Shareholder Vote shall decide any question, except
when a different vote is required or permitted by the 1940 Act or other
applicable law or by this Declaration of Trust or the Bylaws, or when the
Trustees shall in their discretion require a larger vote or the vote of a
majority or larger fraction of the Shares of one or more particular Series.
Section 7.6 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 larger proportion thereof or of the Shares of any particular Series as
shall be required by the 1940 Act or by any provision of this Declaration of
Trust or the Bylaws or as shall be permitted by the Trustees) consent to the
action in writing and if the writings in which such consent is given are filed
with the records of the meetings of Shareholders, to the same extent and for the
same period as proxies given in connection with a Shareholders' meeting. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
Section 7.7 Inspection of Records. The records of the Trust shall be open for
inspection by Shareholders to the same extent as is permitted stockholders of a
Massachusetts business corporation under the Massachusetts Business Corporation
Law.
Section 7.8 Additional Provisions. The Bylaws may include further provisions
for Shareholders' votes and meetings and related matters not inconsistent with
the provisions hereof.
ARTICLE VIII LIMITATION OF LIABILITY; INDEMNIFICATION
Section 8.1 Trustees and Shareholders Not Personally Liable. The Trustees and
officers of the Trust, in incurring any debts, liabilities, or obligations, or
in limiting or omitting any other actions for or in connection with the Trust,
are or shall be deemed to be acting as Trustees or officers of the Trust and not
in their own capacities. No Shareholder shall be subject to any personal
liability whatsoever in tort, contract or otherwise to
any other Person in connection with the assets or affairs of the Trust or of any
Fund; and subject to Section 8.4 hereof, no Trustee, officer, employee or agent
of the Trust shall be subject to any personal liability whatsoever in tort,
contract or otherwise to any other Person in connection with the assets or
affairs of the Trust or of any Fund, unless only that arising from his own
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office or the discharge of his functions.
The Trust (or if the matter relates only to a particular Fund, that Fund) shall
be solely liable for any and all debts, claims, demands, judgments, decrees,
liabilities or obligations of any and every kind, against or with respect to the
Trust or such Fund in tort, contract or otherwise in connection with the assets
or affairs of the Trust or of such Fund, and all persons dealing with the Trust
or any Fund shall be deemed to have agreed that resort shall be had solely to
the Trust Property or the Fund Assets of such Fund, as the case may be, for the
payment or performance thereof.
The Trustees shall use their best efforts to ensure that every note, bond,
contract, instrument, certificate or undertaking made or issued by the Trustees
or by any officer shall reiterate the provisions of this Section 8.1.
Section 8.2 Trustees' Good Faith Action. The exercise by the Trustees of
their powers and discretion hereunder shall be binding upon everyone interested.
Subject to Section 8.4 hereof, a Trustee shall be liable for his 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, (i) the Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, consultant
or contracting party, nor shall any Trustee be responsible for the act or
omission of any other Trustee; (ii) 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 (iii) 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. 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 8.3 Indemnification of Shareholders. If any Shareholder (or former
Shareholder) of the Trust 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 representative, or in the case of a corporation or other entity, its
corporate or other general successor) shall be entitled (but solely out of the
assets of the Fund of which such Shareholder or former Shareholder is or was the
holder of Shares) to be held harmless from and indemnified against all loss and
expense arising from such liability.
Section 8.4 Indemnification of Trustees and Officers. Subject to the
limitations set forth in this Section 8.4, the Trust shall indemnify (from the
assets of the Fund or Funds to which the conduct in question relates) each of
its Trustees and officers, including persons who serve at the Trust's request
as directors, officers or trustees of another organization in which the Trust
has any interest as a shareholder, creditor or otherwise (referred to
hereinafter, together with such Person's heirs, executors, administrators or
other legal representatives, as a "Covered Person") against all liabilities,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and expenses, including reasonable
accountants' and counsel fees, incurred by any Covered Person in connection
with the defense or disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or legislative body, in
which such Covered Person may be or may have been involved as a party
or otherwise or with which such Covered Person may be or may have been
threatened, while in office or thereafter, by reason of being or having been
such a Trustee or officer, except with respect to any matter as to which it has
been determined that such Covered Person (i) did not act in good faith in the
reasonable belief that his action was in or not opposed to the best interests
of the Trust or (ii) had acted with willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office (either and both of the conduct described in clauses (i) and (ii)
above being referred to hereinafter as "Disabling Conduct"). A determination
that the Covered Person is entitled to indemnification may be made by (i)
a final decision on the merits by a court or other body before whom the
proceeding was brought that such Covered Person was not liable by reason of
Disabling Conduct, (ii) dismissal of a court action or an administrative action
against such Covered Person for insufficiency of evidence of Disabling
Conduct, or (iii) a reasonable determination, based upon a review of the facts,
that such Covered Person was not liable by reason of Disabling Conduct by (a)
vote of a majority of a quorum of Trustees who are neither "interested persons"
of the Trust as the quoted phrase is defined in Section 2(a)(19) of the 1940 Act
nor
parties to the action, suit or other proceeding on the same or similar grounds
is then or has been pending or threatened (such quorum of such Trustees being
referred to hereinafter as the "Disinterested Trustees"), or (b) an independent
legal counsel in a written opinion. Expenses, including accountants' and counsel
fees so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may be paid
from time to time by the Fund or Funds to which the conduct in question related
in advance of the final disposition of any such action, suit or proceeding;
provided, that the Covered Person shall have undertaken to repay the amounts so
paid if it is ultimately determined that indemnification of such expenses is not
authorized under this Article VIII and if (i) the Covered Person shall have
provided security for such undertaking, (ii) the Trust shall be insured against
losses arising by reason of any lawful advances, or (iii) a majority of the
Disinterested Trustees, or an independent legal counsel in a written opinion,
shall have determined, based on a review of readily available facts (as opposed
to a full inquiry), that there is reason to believe that the Covered Person
ultimately will be entitled to indemnification hereunder.
Section 8.5 Compromise Payment. As to any matter disposed of by a compromise
payment by any Covered Person referred to in Section 8.4 hereof, pursuant to a
consent decree or otherwise, no such indemnification either for said payment or
for any other expenses shall be provided unless such indemnification shall be
approved (i) by a majority of the Disinterested Trustees or (ii) by an
independent legal counsel in a written opinion. Approval by the Disinterested
Trustees pursuant to clause (i) shall not prevent the recovery from any Covered
Person of any amount paid to such Covered Person in accordance with either of
such clauses as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have acted in good faith
in the reasonable belief that such Covered Person's action was in or not opposed
to the best interests of the Trust or to have been liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office.
Section 8.6 Indemnification Not Exclusive. The right of indemnification
provided by this Article VIII shall not be exclusive of or affect any of the
rights to which any Covered Person may be entitled. Nothing contained in this
Article VIII shall affect any rights to indemnification to which personnel of
the Trust, other than Trustees and officers, and other Persons may be entitled
by contract or otherwise under law, nor the power of the Trust to purchase and
maintain liability insurance on behalf of any such person.
Section 8.7 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.
ARTICLE IX DURATION; REORGANIZATION; AMENDMENTS
Section 9.1 Duration and Termination of Trust. Unless terminated as provided
herein, the Trust shall continue without limitation of time and, without
limiting the generality of the foregoing, no change, alteration or modification
with respect to the Trust or any Fund or Series of Shares shall operate to
terminate the Trust. The Trust may be terminated at any time by a Majority of
the Trustees, subject to the favorable vote of the holders of not less than a
majority of the Shares outstanding and entitled to vote of each Fund of the
Trust, or by an instrument or instruments in writing without a meeting,
consented to by the holders of not less than a majority of such Shares, or by a
greater or different vote of shareholders of any Series as may be established by
the Certificate of Designation by which such Series was unauthorized. 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 Section 6.2(d) hereof.
Section 9.2 Reorganization. The Trustees may sell, convey and transfer all or
substantially all of the Trust Property, or the assets belonging to any one or
more Funds, to another trust, partnership, association, corporation or other
entity, or may transfer such assets to another Fund of the Trust in exchange for
cash, Shares or other Securities (including, in the case of a transfer to
another Fund of the Trust, Shares of such other Fund), or to the extent
permitted by law then in effect, may merge or consolidate the Trust or any Fund
with any other trust, partnership, association, corporation or other entity, all
upon such terms and conditions and for such consideration when and as authorized
by a Majority of the Trustees, subject to the favorable vote of the holders of
not less than a majority of the Shares outstanding and entitled to vote of each
Fund whose assets are affected by such transaction, or by an instrument or
instruments in writing without a meeting, consented to by the holders of not
less than a majority of such Shares, or by such greater or different vote of
Shareholders of any Series as may be established by the Certificate of
Designation by which such Series was authorized. Following such transfer, the
Trustees shall distribute the cash, Shares or other Securities or other
consideration received in such transaction (giving due effect to the assets
belonging to and the liabilities of, and any other differences among, the
various Funds of which the assets have so been transferred) among the
Shareholders of the Fund of which the assets have been so transferred; and if
all of the assets of the Trust have been so transferred, the Trust shall be
terminated. Nothing in this Section 9.2 shall be construed as requiring approval
of Shareholders for the Trustees to organize or assist in organizing one or more
corporations, trusts, partnerships, associations or other organizations, and to
sell, convey or transfer less than substantially all of the Trust Property or
the assets belonging to any Fund to such organizations or entities.
Section 9.3 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 adversely affect the limitations on personal liability of any Shareholder
or Trustee or the prohibition of assessment upon the Shareholders (otherwise
than as permitted under Section 6.2(h)) 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, so long as such amendment does not adversely affect
the rights of any Shareholder with respect to matters to which such amendment is
or purports to be applicable and so long as such amendment is not in
contravention of applicable law, including the 1940 Act, by an instrument in
writing signed by a Majority of the Trustees (or by an officer of the Trust
pursuant to the vote of a Majority of the Trustees). Any amendment to this
Declaration of Trust that adversely affects the rights of all Shareholders may
be adopted at any time by an instrument in writing signed by a Majority of the
Trustees (or by an officer of the Trust pursuant to a vote of a Majority of the
Trustees) when authorized to do so by the vote in accordance with Section 7.1
hereof of Shareholders holding a majority of all the Shares outstanding and
entitled to vote, without regard to Series, or if said amendment adversely
affects the rights of the Shareholders of less than all of the Funds, by the
vote of the holders of a majority of all the Shares entitled to vote of each
Fund so affected. A Certificate of Designation establishing and designating any
Fund in addition to the Fund established and designated in Section 6.2 hereof
and authorizing of the Shares thereof shall not constitute an amendment to this
Declaration which adversely affects the rights of any Shareholder. Subject to
the foregoing, any amendment shall be effective when an instrument containing
the terms thereof and a certificate (which may be a part of such instrument) to
the effect that such amendment has been duly adopted, and setting forth the
circumstances thereof, shall have been executed by a Trustee or officer of the
Trust.
Section 9.4 Filing of Copies of Declaration and Amendments. The original or
a copy of this Declaration and of each amendment hereto (including each
Certificate of Designation and Certificate of Termination) shall be kept at the
principal office of the Trust where it may be inspected by any Shareholder, and
one copy of each such instrument shall be filed with the Secretary of The
Commonwealth of Massachusetts, as well as with any other governmental office
where such filing may from time to time be required by the laws of
Massachusetts. A restated Declaration, integrating into a single instrument all
of the provisions of this Declaration which are then in effect and operative,
may be executed from time to time by a Majority of the Trustees (or by an
officer of the Trust pursuant to the vote of a Majority of the Trustees) and
shall, upon filing with the Secretary of The Commonwealth of Massachusetts, be
conclusive evidence of all amendments contained therein and may thereafter be
referred to in lieu of the original Declaration and the various amendments
thereto.
ARTICLE X MISCELLANEOUS
Section 10.1 Governing Law. This Declaration of Trust is executed and
delivered in The Commonwealth of Massachusetts and with reference to the laws
thereof, and the rights of all parties and the construction and effect of every
provision hereof shall be subject to and construed according to the laws of said
Commonwealth.
Section 10.2 Counterparts. This Declaration of Trust and any amendment
hereto may be simultaneously executed in several counterparts, each of which so
executed shall be deemed to be an original, and such counterparts, together
shall constitute but one and the same instrument, which shall be sufficiently
evidenced by any such original counterpart.
Section 10.3 Reliance by Third Parties. Any certificate executed by an
individual who, according to the records in the office of the Secretary of The
Commonwealth of Massachusetts appears to be a Trustee hereunder or an officer of
the Trust certifying to: (i) the number or identity of Trustees or Shareholders,
(ii) the due authorization of the execution of any instrument or writing, (iii)
the form of any vote passed at a meeting of Trustees or Shareholders, (iv) the
fact that the number of Trustees or Shareholders present at any meeting or
executing any written instrument satisfies the requirements of this Declaration
of Trust, (v) the form of any Bylaw adopted, or the identity of any officers
elected, by the Trustees, or (vi) the existence or nonexistence of any fact or
facts which in any manner relate to the affairs of the Trust, shall be
conclusive evidence as to the matters so certified in favor of any person
dealing with the Trustees, or any of them, and the successors of such person.
Section 10.4 References; Headings. 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 of this Declaration or control
or affect the meaning, construction or effect hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand, and has thereby
accepted the Trusteeship as the Initial Trustee of The Tuscarora Investment
Trust hereby granted and agreed to the provisions hereof, all as of the day and
year first above written.
/s/ Xxxxxx X. Xxxxxxx III
_______________________________
Xxxxxx X. Xxxxxxx III
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx Xxxxxxxx 00000
ACKNOWLEDGEMENT
State of North Carolina
County of Durham March 3, 1995
Then personally appeared the above named Xxxxxx X. Xxxxxxx III and
acknowledged the foregoing instrument to be his free act and
deed.
Before me, /s/ Xxxxx X. XxXxxxxx
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