Exhibit 1(a)
THE XXXXX FUND
---------------------------------------
AGREEMENT AND DECLARATION OF TRUST
---------------------------------------
Dated: March 20, 1986
X WASHINGTON, D.C.
0000 XXXXXXXXXXX XXXXXX, X.X.
XXXXXXXXXX, X.X. 00000
(000) 000-0000
TELECOPIER NO. XXXXXXXXXXX
XXXXXXXX & WORCESTER
XXX XXXX XXXXXX XXXXXX
XXXXXX XXXXXXXXXXXXX 00000
(000) 000-0000
TELECOPIER NO. 617-338-2880
TWX 000-000-0000
IN NEW YORK CITY
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
(000) 000-0000
TELECOPIER NO. XXXXXXXX
March 20, 0000
Xxxxxxxxx xx Xxxxx
Corporations Division
Xxx Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx. Xxxxxxxx Xxxxxxxx
RE: THE XXXXX FUND
Dear Xxx. Xxxxxxxx:
Enclosed for filing with respect to the above-referenced trust please find an
Agreement and Declaration of Trust dated March 20, 1986. I also enclose a check
for $150.00 in payment of the filing fee.
Please note that I am the Initial Trustee and that the resident agent of the
Trust is Xxxxxx X. Xxxxxxx. The address for both of us is c/o Sullivan &
Worcester, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Please date-stamp the enclosed copy of this letter to acknowledge receipt.
Very truly yours,
/s/ Xxxxx X. Xxxxx
-------------------
Xxxxx X. Xxxxx
BGT/kas
Enclosure
The Xxxxx Fund
AGREEMENT AND DECLARATION OF TRUST
INDEX
PAGE
RECITALS 1
ARTICLE I THE TRUST 2
Section 1.1 Name 2
Section 1.2 Location 2
Section 1.3 Nature of Trust 2
Section 1.4 Definitions 2
Section 1.5 Real Property to be Converted into Personal Property 6
ARTICLE II. PURPOSE OF THE TRUST 7
ARTICLE III. POWERS OF THE TRUSTEE 7
Section 3.1 Powers in General 7
(a) Investments 8
(b) Disposition of Assets 8
(c) Ownership Powers 9
(d) Forms of Holding 9
(e) Reorganization, etc. 9
(f) Voting Trusts, etc. 9
(g) Contracts, etc. 9
(h) Guarantees, etc. 10
(i) Partnerships, etc. 10
(j) Insurance 10
(k) Pensions, etc. 10
(l) Power of Collection and Litigation 10
(m) Issuance and Repurchase of Shares 11
(n) Offices 11
(o) Expenses 11
(p) Agents, etc. 11
(q) Accounts 11
(r) Valuation 11
(s) Indemnification 11
(t) General 12
Section 3.2 Borrowings; Financings; Issuance of Securities 12
Section 3.3 Deposits 12
Section 3.4 Allocations 12
Section 3.5 Further Powers; Limitations 13
ARTICLE IV. TRUSTEES AND OFFICERS 13
Section 4.1 Number, Designation, Election, Term, etc. 13
(a) Initial Trustee 13
(b) Number 13
(c) Election and Xxxx 00
(x) Resignation and Retirement 14
(e) Removal 14
(f) Vacancies 14
(g) Acceptance of Trusts 15
(h) Effect of Death, Resignation, etc. 15
(i) Conveyance 15
(j) No Accounting 15
(k) Filings 15
Section 4.2 Trustees; Meetings; Participation by Telephone, etc. 16
Section 4.3 Committees; Delegation 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; Authority of Trustees to
Permit Others to Do Likewise 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 18
Section 4.12 Payment of Trust Expenses 19
Section 4.13 Ownership of the Trust Property 19
ARTICLE V. DELEGATION OF MANAGERIAL RESPONSIBILITIES 20
Section 5.1 Appointment; Action by Less than All Trustees 20
Section 5.2 Certain Contracts 20
(a) Advisory 20
(b) Administration 21
(c) Distribution 21
(d) Custodian 21
(e) Transfer and Dividend Disbursing Agency 22
(f) Shareholder Servicing 22
(g) Accounting 22
ARTICLE VI. PORTFOLIOS AND SHARES 22
Section 6.1 Description of Portfolios and Shares 22
(a) Shares; Portfolios; Series of Shares 22
(b) Establishment, etc. of Portfolios;
Authorization of Shares 23
(c) Character of Separate Portfolios and
Shares Thereof 23
(d) Consideration of Shares 23
Section 6.2 Establishment and Designation of Certain
Portfolios; General Provisions for All Portfolios 24
(a) Assets Belonging to Portfolios 24
(b) Liabilities of Portfolios 25
(c) Dividends 25
(d) Liquidation 26
(e) Voting 26
(f) Redemption by Shareholder 26
(g) Redemption at the Option of the Trust 26
(h) Net Asset Value 27
(i) Transfer 27
(j) Equality 27
(k) Rights of Fractional Shares 27
(l) Conversion Rights 28
Section 6.3 Ownership of Shares 28
Section 6.4 Investment in the Trust 28
Section 6.5 No Pre-emptive Rights 28
Section 6.6 Status of Shares 28
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 29
Section 7.3 Meetings 30
Section 7.4 Record Dates 30
Section 7.5 Quorum and Required Vote 31
Section 7.6 Action by Written Consent 31
Section 7.7 Inspection of Records 31
Section 7.8 Additional Provisions 31
ARTICLE VIII LIMITATIONS OF LIABILITY; INDEMNIFICATION 31
Section 8.1 Trustees, Shareholders, etc. Not Personally
Liable; Notice 31
Section 8.2 Trustees; Good Faith Action; Expert Advice;
No Bond of Surety 32
Section 8.3 Indemnification of Shareholders 33
Section 8.4 Indemnification of Trustees, Officers, etc. 33
Section 8.5 Compromise Payment 34
Section 8.6 Indemnification Not Exclusive, etc. 34
Section 8.7 Liability of Third Persons Dealing with Trustees 35
ARTICLE IX DURATION; REORGANIZATION; AMENDMENTS 35
Section 9.1 Duration and Termination of Trust 35
Section 9.2 Reorganization 35
Section 9.3 Amendments; etc. 36
Section 9.4 Filing of Copies of Declaration and Amendments 36
ARTICLE X MISCELLANEOUS 37
Section 10.1 Governing Law 37
Section 10.2 Counterparts 37
Section 10.3 Reliance by Third Parties 37
Section 10.4 References; Headings 37
Section 10.5 Use of the Name "Xxxxx": 37
Signatures 38
Acknowledgments 00
XXX XXXXX FUND
This AGREEMENT AND DECLARATION OF TRUST, made at Boston, Massachusetts this
20th day of March 1986, by and between the Settlor and the Trustee whose
signature is set forth below (the "Initial Trustees").
WITNESSETH THAT:
WHEREAS, Xxxxx X. Xxxxxxxx, an individual residing in Boston, Massachusetts
(the "SETTLOR"), proposes to deliver to the Initial Trustee the sum of one
hundred dollars ($100.00) lawful money of the United States of America in trust
hereunder and to authorize the Initial Trustee and all other Persons acting as
Trustees hereunder to employ such funds, and any other funds coming into their
hands or the hands of their successor or successors as such Trustees, to 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, options, futures contracts and other securities and interests therein;
or calls or puts with respect to any of the same, 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, is willing to accept 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, it is proposed that the assets held by the Trustees be divided
into separate funds, each with its own separate investment portfolio, investment
objectives, policies and purposes, and that the beneficial interest in each such
fund shall be divided into transferable Shares of Beneficial Interest, 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 established hereby (the "TRUST") be
managed and operated as a trust with transferable shares under the laws of
Massachusetts, of the type commonly known as and referred to as a Massachusetts
business trust, in accordance with the provisions hereinafter set forth.
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 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 therefrom and the
proceeds thereof, IN TRUST NEVERTHELESS, to manage and dispose of the same for
the benefit of the holders from time to time of the Shares of Beneficial
Interest of the several Series being issued and to be issued hereunder and in
the manner and subject of the provisions hereof, to wit:
ARTICLE I
THE TRUST
SECTION 1.1 Name: The name of the Trust shall be
"THE XXXXX FUND",
and so far as may be practicable and the Trustees shall conduct the Trust's
activities, execute all documents and xxx or be sued under that name, which name
(and the work "TRUST" whatever 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. LOCATION. The Trust shall have an office in Boston,
Massachusetts, unless changed by the Trustees to another location in
Massachusetts or elsewhere, 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.
SECTION 1.3. NATURE OF TRUST. The Trust shall be a trust with transferable
shares under the laws of The Commonwealth of Massachusetts, of the type referred
to in Section 1 or Chapter 182 of the Massachusetts General Laws and commonly
termed 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, 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 meaning assigned to it in the 1940 Act.
"BY-LAWS" shall mean the By-Laws 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 same meaning as 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 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.
"GENERAL ITEMS" shall have the meaning defined in Section 6.2 (a) hereof.
"INITIAL TRUSTEE" shall have the meaning defined in the preamble hereto.
"INVESTMENT ADVISOR" shall have the meaning stated 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 term 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 of the Trust, without
regard to Series, represented in person or by proxy and entitled to vote
thereon, provided that a quorum (as determined in accordance with the By-Laws)
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 all 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) of the Trust which consists of: (i) a
majority of all Shares (or of Shares of the particular Series) reresented 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 the By-Laws) is present; or (ii) if such action is
to be taken by written consent of Shareholders, a majority of all Shares (or of
Shares of the particular Series) issued and outstanding and entitled to vote on
such action; PROVIDED, 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 Portfolio,
"MAJORITY SHAREHOLDER VOTE" means the vote for such action at a meeting of
Shareholders of the smallest majority of all outstanding Shares of the Trust (or
of Shares of the particular Portfolio) entitled to vote on such action which
satisfies such 1940 Act voting requirement.
"1940 ACT" shall mean the provisions of the invest 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, general partnerships, joint stock companies, joint
ventures associations, banks, trust companies, land trusts, business trusts or
other organizations established under the laws of any jurisdiction, whether or
not considered to be legal entities, and governments and agencies and political
subdivisions thereof
"PORTFOLIO" or "PORTFOLIOS" 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.
"PORTFOLIO ASSETS" shall have the meaning defined in Section 6.2 (a)
hereof.
"PRINCIPAL UNDERWRITER" shall have the meaning designated in Section 5.2
(c) hereof.
"PROSPECTUS" as used with respect to any Portfolio or Series of Shares,
shall mean the prospectus relating to such Portfolio 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, time deposits, certificates of
deposit, bankers' acceptances, commercial paper, repurchase agreements or other
money market instruments; stocks, shares or other equity ownership interests;
and warrants, options or other instruments representing rights to subscribe for,
purchase, receive or otherwise acquire or to sell, transfer, assign or otherwise
dispose of, and "scrip, certificates, receipts or other instruments evidencing
any ownership rights or interests in, any of the foregoing and "when issued" and
"delayed delivery" contracts for securities, issued, guaranteed or sponsored by
any governments, political subdivisions or governmental authorities, agencies 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 Portfolios.
"SETTLOR" shall have the meaning stated in the first "Whereas" clause set
forth above.
"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, and shall include a pledge into whose name any such Shares are
transferred in pledge.
"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 Portfolio 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 Portfolio 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 the 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 vote
as a single class.
"STATEMENT OF ADDITIONAL INFORMATION," as used with respect to any
Portfolio or Series of Shares, shall mean the statement of additional
information relating to such Portfolio or Series, which constitutes part of the
currently effective Registration Statement of the Trust under the Securities Act
of 1933, as such statement of additional information may be amended or
supplemented from time to time.
"TRANSFER AGENT" shall have the meaning defined in Section 5.2(e) hereof.
"TRUST" shall have the meaning stated in the fourth "Whereas" clause set
forth above.
"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 neglected 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.
SECTION 1.5. REAL PROPERTY TO BE CONVERTED INTO PERSONAL PROPERTY.
Notwithstanding any other provisions hereof, any real property at any time
forming part of the Trust Property shall be held in trust for sale and
conversion into personal property at such time or times and in such manner and
upon such terms as the Trustees shall approve, but the Trustees shall have power
until the termination of this Trust to postpone such conversion as long as they
in their uncontrolled discretion shall think fit, and for the purpose of
determining the nature of the interest of the Shareholders therein, all such
real property shall at all times be considered as personal property.
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, (a) Securities of all kinds, (b) precious metals and other minerals,
contracts to purchase and sell, and other interests of every nature and kind in,
such metals or minerals, and (c) rare coins and other numismatic items, and all
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 given
hereby which are lawful purposes, objects or powers of a trust with transferable
shares of the type commonly termed 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 termed 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 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; they may from time to
time in accordance with the provisions of Section 6.1 hereof establish one or
more Portfolios to which they may allocate such of the Trust Property, subject
to such liabilities, as they shall deem appropriate, each such Portfolio to be
operated by the Trustees as a separate and distinct investment medium 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; they may as they consider appropriate elect and remove officers and
appoint and terminate agents and consultants and hire and terminate employees,
any one or more of the foregoing of whom may be a Trustee; they may appoint from
their own number, and terminate, any one or more committees consisting of one or
more Trustees, including without implied limitation in Executive Committee,
which may, when the Trustees are not in session and subject to, the 1940 Act,
exercise some of the power and authority of the Trustees as the Trustees may
determine; in accordance with Section 5.2 they may employ one or more Investment
Advisors, Administrators and Custodians and may authorize any Custodian to
employ subcustodians or agents and to deposit all or any part of such assets 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 by the Trust through one or
more Distributors, Principals Underwriters or otherwise, set record dates or
times for the determination of Shareholders entitled to participate in, benefit
from or act with respect to various matters; and in general they may delegate to
any officer of the Trust, to any Committee of the Trustees and to any employee,
Investment Advisor, Administrator, Distributor, Custodian, Transfer Agent,
Dividend Disbursing Agent, or any other agent or consultant of the Trust, such
authority, powers, functions and duties as they consider desirable or
appropriate for the conduct of the business and affairs of the Trust, including
without implied limitation the power and authority to act in the name of the
Trust and of the Trustees, to sign documents and to act as attorney-in-fact for
the Trustees. 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; 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. Upon such terms and conditions as they deem
best, 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 privilege or 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
proper, receiving from or granting to such Person or Persons such power and
discretion with relation to Securities or other property of the Trust, all
as the Trustees shall deem proper;
(d) FORM OF HOLDING. To hold any Security or other property in a form
not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees or of the Trust, or of the
Portfolio to which such Securities or property belong, or in the name of a
Custodian, subcustodian 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, ETC. To consent to or participate in any plan for
the reorganization, consolidation or merger of any corporation or issuer,
any Security of which is or was held in the Trust or any Portfolio; to
consent to any contract, lease, mortgage, purchase or sale of property by
such corporation or issuer, and to pay calls or subscriptions with respect
to any Security forming part of the Trust Property;
(f) VOTING TRUSTS, ETC. 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 prosper, 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, ETC. 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, ETC. To endorse or guarantee the payment of any notes
or other obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof; and to
mortgage and pledge the Trust Property or any part thereof to secure any of
or all such obligations; (i) PARTNERSHIPS, ETC. To enter into joint
ventures, general or limited partnerships and any other combinations or
associations;
(j) INSURANCE. To purchase and pay for entirely out of Trust Property
such insurance as they may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring
the assets of the Trust and payment of distributions and principal on its
portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, consultants, Investment Advisors,
managers, Administrators, Distributors, Principal Underwriters, or other
independent contractors, or any thereof (or any Person connected
therewith), of the Trust, individually, against all claims and liabilities
of every nature arising by reason of holding, being or having held any such
office or position, or by reason of any action alleged to have been taken
or omitted by any such Person in any such capacity, including any action
taken or omitted that may be determined to constitute negligence, whether
or not the Trust would have the power to indemnify such Person against such
liability;
(k) PENSIONS, ETC. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry our 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 and agents of the Trust;
(l) 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,
compromise, 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 other 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;
(m) ISSUANCE AND REPURCHASE OF SHARES. To issue, sell, repurchase,
redeem, retire, cancel, acquire, hold, resell, reissue, dispose, 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 Portfolio
Assets belonging to the Portfolio 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;
(n) 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, and in any and all foreign
countries, subject to the laws of such State, District, Territory or
country;
(o) 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;
(p) AGENTS, ETC. To retain and employ any and all such servants,
agents, employees, attorneys, brokers, investment advisers, accountants,
architects, engineers, builders, escrow agents depositories, consultants,
ancillary trusts, custodians, agents for collection, insurers, banks and
officers, as ;they think best for the business of the Trust or any
Portfolio, to supervise and direct the acts of any of the same, and to fix
and pay their compensation and define their duties;
(q) ACCOUNTS. To determine, and from time to time change, the method
or form in which the accounts of the Trust shall be kept;
(r) 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;
(s) INDEMNIFICATION. In addition to the mandatory indemnification
provided for in Article VIII hereof and to the extent permitted by law, to
indemnify or enter into agreements with respect to indemnification with any
Person with whom this Trust has dealings, including, without limitation,
any independent contractor, to such extent as the Trustees shall determine;
and
(t) 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 Portfolio as an
investment company, 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 Portfolio, 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 Portfolio, or otherwise to carry out the provisions of this
Declaration.
SECTION 3.2. BORROWINGS; FINANCINGS; ISSUANCE OF SECURITIES. The Trustees
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 issue
Securities of any type for such cash, property, services or other
considerations, 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 be 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 of any
premium or discount, to treat any part or all of the profit resulting from the
maturity or sale of any asset, whether purchased at a premium or at a discount,
as income or capital, or to apportion the same between income and capital, to
apportion the sale price of any asset between income and capital, and to
determine in what manner any expenses or disbursements are to be borne as
between income and capital, whether or not in the absence of the power and
authority conferred by this Section 3.4 such assets would be regarded as income
or as capital or such expense or disbursement would be charged to income or to
capital; to treat any dividend or other distribution on any investment as income
or capital, or to apportion the same between income and capital; to provide or
fail to provide reserves, including reserves for depreciation, amortization or
obsolescence in respect of any Trust Property in such amounts and by such
methods as they shall determine; to allocate less than al of the consideration
paid for Shares of any Series to the shares of beneficial interest account of
the Portfolio to which such Shares relate and to allocate the balance thereof to
paid-in capital of that Portfolio, and to reallocate such amounts from time to
time; all as the Trustees may reasonably deem proper.
SECTION 3.5. FURTHER POWERS; LIMITATIONS. The Trustees shall have power to
do all such other matters and things, and to execute all such instruments, as
they deem necessary, proper or desirable in order to carry out, promote or
advance the interests of the Trust, although such matters or things are not
herein specifically mentioned. Any determination as to what is in the interests
of the Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Declaration of Trust, the presumption shall be
in favor of a grant of power to the Trustees. 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 of the Trust or in other contractual instruments adopted on behalf to
the Trust.
ARTICLE IV
TRUSTEES AND OFFICERS
SECTION 4.1. NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) INITIAL TRUSTEE. Upon his execution of this Declaration of Trust
or a counterpart hereof or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof, the individual whose
signature is affixed hereto as Initial Trustee shall become the Initial
Trustee hereof.
(b) NUMBER. The Trustees serving as such, whether named above or
hereafter becoming Trustees, may increase (to not more than twenty (20)) or
decrease the number of Trustees to a number other than the number
theretofore determined by a written instrument signed by a Majority of the
Trustees (or by an officer of the Trust pursuant to the vote of a Majority
of the Trustees). 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) ELECTION AND TERM. The Trustees shall be elected by the
Shareholders of the Trust at the first meeting of Shareholders immediately
prior to the initial public offering of Shares of the Trust, and the term
of office of any trustees in office before such election shall terminate at
the time of such election. Subject to Section 16(a) of the 1940 Act and to
the preceding sentence of this subsection (c), 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
Trustees shall be elected by a Majority Shareholder Vote at any such time
or times as the Trustees shall determine that such action is required under
Section 16(a) of the 1940 Act or; if not so required, that such action is
advisable; and FURTHER PROVIDED, that, after the initial election of
Trustees by the Shareholders, the term of office of any incumbent Trustee
shall continue until the termination of this Trust or his earlier death,
resignation, retirement, bankruptcy, adjudicated incompetency or other
incapacity or removal, or if not so terminated, until the election of such
Trustee's successor in office has become effective in accordance with this
subsection (c).
(e) REMOVAL. Any trustee may be removed with or without cause at any
time: (i) by written instrument, signed by a least two-thirds (2/3) of the
number of Trustees prior to such removal, specifying the date upon which
such removal shall become effective; or (ii) by vote of Shareholders
holding not less than two-thirds (2/3) of the Shares of each Series then
outstanding, 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 the Shares of each Series then
outstanding 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 Trustees, may (but need not
unless required by the 0000 Xxx) be filled by a Majority of the Trustees,
subject to the provisions of Section 16(a) of the 1940 Act, through the
appointment in writing of such other individual as such remaining Trustees
in their discretion shall determine; PROVIDED, that if there shall be not
Trustee in office, such vacancy or vacancies shall be filled by vote of the
Shareholders. Any such appointment or election shall be effective upon such
individual's written acceptance of his appointment as a Trustee and his
agreement to be bound by the provision of this Declaration of Trust, except
that any such appointment in anticipation of a vacancy to occur be 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 TRUSTS. Any individual appointed as a Trustee under
subsection (f), and any individual elected as a Trustee under subsection
(c), of this Section 4.1 who was not, immediately prior to such election,
acting as a Trustee, shall accept such appointment or election in writing
and agree in such writing to be bound by the provisions hereof, and
whenever such individual shall have executed such writing and any
conditions to such appointment or election 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.
(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. A
written instrument certifying the existence of such vacancy signed by a
majority of the Trustees shall be conclusive evidence of their existence of
such vacancy.
(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) NO ACCOUNTING. Except to the extent required by the 1940 Act or
under circumstances which would justify his removal for cause, no Person
ceasing to be a Trustee (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 Trustee is required to file amendments to this Declaration a copy
of (i) the instrument by which (in the case of the appointment of a new
Trustee, or the election of an individual who was not theretofore a
Trustee) the new Trustee accepted his appointment or election and agreed to
be bound by the terms of this Declaration, or (in the case of a
resignation) by which the former Trustee resigned as such, together in
either case with a certificate of one of the other Trustees as to the
circumstances of such election, appointment or resignation, or (ii) in the
case of the removal or death of a Trustee, a certificate of one of the
Trustees as to the circumstances of such removal or resignation.
SECTION 4.2. TRUSTEES' MEETINGS; PARTICIPATION BY TELEPHONE, ETC. 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 such 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
By-Laws. 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 called and held. Except as
otherwise provided by the 1949 Act or other applicable law, or by this
Declaration of Trust or the By-Laws, any action to be taken by the Trustees may
be taken by a majority of the Trustees present at a meeting of Trustees (a
quorum, consisting of at least a majority of the Trustees, being present, within
or without Massachusetts. If authorized by the By-Laws, 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; DELEGATION. 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, the doing of such things and
the exception of such deeds or other instruments, either, in the name of the
Trust or the names or 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
By-Laws. Except as may be provided in the By-Laws, 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 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 Trusts 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,
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; subject, in the case of Trustees and
officers, to the same imitations as directors or officers (as the case may be)
of a Massachusetts business corporation; 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
purchases 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 and dispose of, for his own individual account, any property,
and acquire, own, hold, carry on and dispose of, for his own individual account,
any business sentry 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
business, to carry on business, 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, engineers, brokers, appraisers, auctioneers, 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 reasonable deemed by the Trustees
or officers in question to be competent, and the advise 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 acting, 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 believable 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, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party (as defined in Section 5.2 hereof), or of or for any
parent or affiliate of any Contracting party, or that the Contracting Party
or any parent or affiliate thereof is a Shareholder or has an interest in
the rust or any Portfolio, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations, trusts
associations, partnerships, limited partnerships or other organizations, or
have other business or interest, shall not affect the validity 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 holders of Shares of any Series,
PROVIDED, that, in the case of any relationship or interest referred to in
the preceding clause (i) on the part of any Trustee or officer of the
Trust, either (x) the material facts as to such relationship or interest
have been disclosed to or are known by the Trustees not having any such
relationship or interest and the contract involved is approved in good
faith by a majority of such Trustees not having any such relationship or
interest (even though such unrelated or disinterested Trustees are less
than a quorum of all of the Trustees), (y) the material facts as to such
relationship or interest and as to the contract have been disclosed to or
are known by the 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 Portfolios 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 Advisor, Administrator, Distributor," Principal Underwriter, auditor,
counsel, Custodian, Transfer Agent, Dividend Disbursing Agent, Accounting Agent,
Shareholder Servicing Agent, and such other agents, consultants, and independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur.
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 Portfolio, 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 Portfolio 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 supervisions of the business of the Trust conducted by officers, agents,
employees or advisers 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
and agents to conduct, manage and/or supervise the operations the Trust, and may
grant or delegate such authority to such officers, employees and/or agents as
the Trustees may, in their sole 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 which they shall elect to conduct themselves, except as otherwise provided
by this Declaration or the By-Laws, if any, the Trustees may authorize any
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, or generally.
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 anytime 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 corporation, trusts,
associations, partnerships, limited partnerships or other types of
organizations, or individuals ("CONTRACTING PARTY"), to provide for the
performance and assumption of some or all of the following services, duties and
responsibilities to, for or on behalf of the Trust and/or any Portfolio, and/or
the Trustees, and to provide for the performance and assumption of such other
services, duties and responsibilities in addition to those set forth below, as
the Trustees may deem appropriate:
(a) ADVISORY. An investment advisory or management agreement whereby
the Investment Advisor shall undertake to furnish the Trust such
management, investment advisory or supervisory, administrative, accounting,
legal, statistical and research facilities and services, and such other
facilities and services, if any, as the Trustees shall from time to time
consider desirable, al upon such terms and conditions as the trustees may
in their discretion determine to be not inconsistent with his Declaration,
the applicable provisions of the 1940 Act or any applicable provisions of
the By-Laws. 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 the Investment Advisor
(subject to such general or specific instructions as the Trustees may from
time to time adopt) to effect purchases, sales, loans or exchanges of
portfolio securities of the Trust on behalf of the Trustees or may
authorize any officer or employee of the rust or any Trustee to effect such
purchases, sales, loans or exchanges pursuant to recommendations of the
Investment Advisor (and all without further action by the Trustees). Any
such purchases, sales, loans and exchanges shall be deemed to have been
authorized by al of the Trustees. The Trustees may, in their sole
discretion, call a meeting If 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
Portfolio should fail to approve any such investment advisory or
management, the Investment Advisor may nonetheless serve as Investment
Advisor with respect to any other Portfolio whose Shareholders shall have
approved such contract.
(b) ADMINISTRATION. An agreement whereby the agent, subject to the
general supervision of the Trustees and in conformity with any policies of
the Trustees and in conformity with any policies of the Trustees with
respect to the operations of the Trust and each Portfolio, will supervise
all or any part of the operations of the Trust and each Portfolio, and will
provide al 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 Portfolio (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 agreement as its
principal underwriter or sales agent of 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 by-Laws (any such event being herein referred to as a "DISTRIBUTOR" or
a "PRINCIPAL UNDERWRITER", as the case may be).
(d) CUSTODIAN. The appointment of 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) as custodian
of the Securities and cash of the Trust and of each Portfolio and of the
accounting records in connection therewith (any such agent being here
referred to as a "CUSTODIAN").
(e) TRANSFER AND DIVIDEND DISBURSING AGENCY. 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/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's
properties, Shareholders or otherwise (any such agent being herein referred
to as an "ACCOUNTING AGENT").
The same Person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing herein
shall preclude, prevent or limit the rust or a Contracting Party from entering
into sub-contractual arrangements relative to any of the matters referred to in
subsections (a) through (g) of this Section 5.2.
ARTICLE VI
PORTFOLIOS AND SHARES
SECTION 6.1. DESCRIPTION OF PORTFOLIOS AND SHARES.
(a) Shares; Portfolio, Series of Shares. The beneficial interest in
the Trust shall be divided into Shares having a nominal interest in the
Trust shall be divided into Shares having a nominal or par value of one
mill ($.001) per Share, and all of one class, or 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
Portfolios into which the assets of the Trust shall be divided, and to
authorize a separate Series of Shares for each such Portfolio (each of
which Series, including without limitation each Series authorized in
Section 6.2 hereof, shall represent interest only in the Portfolio with
respect to which such Series was authorized), as they deem necessary or
desirable. Except as otherwise provided as to a particular Portfolio
herein, or in the Exhibit 1(a)(2)
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 Portfolio and the assets and affairs thereof as they have
under this Declaration with respect to the Trust and the Trust Property in
general.
(b) ESTABLISHMENT, ETC. OF PORTFOLIOS; AUTHORIZATION OF SHARES. The
establishment and designation of any Portfolio in addition to the
Portfolios 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 Portfolio and the manner in which the same may be
amended (a "CERTIFICATE OF DESIGNATION"), and may provide that the number
of Shares of 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 Portfolio previously established and designated, including any
Portfolio established and designated in Section 6.2 hereof, the Trustees
may by an instrument 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 Portfolio and the establishment and designation thereof and
the authorization of its Shares (a "CERTIFICATE OF TERMINATION"). Each
Certificate of Designation, Certificate of Termination and any instrument
amending a Certificate of Designation shall have the status of an amendment
to this Declaration of Trust, and shall be filed and become effective as
provided in Section 9.4 hereof.
(c) CHARACTER OF SEPARATE PORTFOLIOS AND SHARES THEREOF. Each
Portfolio 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 Portfolio shall be considered
Shareholders of such Portfolio, 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 Portfolio as to such Portfolio, 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 Portfolios, and to fix and determine the relative
rights and preferences as between the shares of the respective Portfolios
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 Portfolios 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-up), all without action or approval of the Shareholders.
All Shares when so issued on the terms determined by the Trustees shall be
fully paid and non-assessable (but may be subject to mandatory contribution
back to the Trust as provided in 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 Portfolios that may be established and designated from time to time.
SECTION 6.2 ESTABLISHMENT AND DESIGNATION OF CERTAIN PORTFOLIOS; GENERAL,
PROVISIONS FOR ALL PORTFOLIOS. Without limiting the authority of the Trustees
set forth in Section 6.1(a) hereof to establish and designate further
Portfolios, there are hereby established and designated the following five (5)
Portfolios. The Xxxxx Money Market Portfolio, The Xxxxx Tax-Exempt Money
Portfolio, The Xxxxx Fixed Income Portfolio, The Xxxxx Small Capitalization
Portfolio and The Xxxxx Growth Portfolio. The Shares of such Portfolios, and the
Shares of any further Portfolios that may from time to time be established and
designated by the Trustees shall (unless the Trustees otherwise determine with
respect to some further Portfolio at the time of establishing and designating
the same) have the following relative rights and preferences:
(a) ASSETS BELONGING TO PORTFOLIOS. Any portion of the Trust Property
allocated to a particular Portfolio, and all consideration received by the
Trust for the issue or sale of Shares of such Portfolio, 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 Portfolio and shall irrevocably belong to that Portfolio for all
purposes, and shall be so recorded upon the books of account of the Trust,
and the Shareholders of such Portfolio shall not have, and shall be
conclusively deemed to have waived, any claims to the assets of any
Portfolio 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 Portfolio as provided in
the following sentence, are herein referred to collectively as "Portfolio
Assets" of such Portfolio, and as assets "BELONGING TO" that Portfolio. In
the event that there are any assets, income, earnings, profits, and
proceeds thereof, funds, or payments which are not readily identifiable as
belonging to any particular Portfolio (collectively, "GENERAL ITEMS"), the
Trustees shall allocate such General Items to and among any one or more of
the Portfolios established and designated from time to time in such manner
and on such basis as they, in their sole discretion, deem fair and
equitable; and any General Items so allocated to a particular Portfolio
shall belong to and be part of the Portfolio Assets of that Portfolio. Each
such allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Portfolios for all purposes.
(b) LIABILITIES OF PORTFOLIOS. The assets belonging to each particular
Portfolio shall be charged with the liabilities in respect of that
Portfolio and all expenses, costs, charges and reserves attributable to
that Portfolio, and any general liabilities, expenses, costs, charges or
reserves of the Trust which are not readily identifiable as pertaining to
any particular Portfolio shall be allocated and charged by the Trustees to
and among any one or more of the Portfolios established and designated from
time to time in such manner and on such basis as the Trustees in their sole
discretion deem fair and equitable. The Indebtedness, expenses, costs,
charges and reserves allocated and so charged to a particular Portfolio are
herein referred to as "liabilities of" that Portfolio. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all Portfolios for all
purposes. Any creditor of any Portfolio may look only to the assets of that
Portfolio to satisfy such creditor's debt.
(c) DIVIDENDS. Dividends and distributions on Shares of a particular
Portfolio 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 Portfolio, from such of the income,
accrued or realized, and capital gains, realized or unrealized, and out of
the assets belonging to that Portfolio, as the Trustees may determine,
after providing for actual and accrued liabilities of that Portfolio. All
dividends and distributions on Shares of a particular Portfolio shall be
distributed pro rata to the Shareholders of that Portfolio 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,
except that in connection with any dividend or distribution program or
procedure the Trustees may determine that no dividend or distribution shall
be payable on Shares as to which the Shareholder's purchase order and/or
payment have not been received by the time or times established by the
Trustees under such program or procedure, or that dividends or
distributions shall be payable on Shares which have been tendered by the
holder thereof for redemption or repurchase, but the redemption or
repurchase proceeds of which have not yet been paid to such Shareholder.
Such dividends and distributions may be made in cash or Shares of that
Portfolio or a combination thereof as determined by the Trustees, or
pursuant to any program that the Trustees may have in effect at the time
for the election by each Shareholder of, the mode of the making of such
dividend or distribution to that Shareholder. Any such dividend or
distribution paid in Shares will be paid at the net asset value thereof as
determined in accordance with subsection (h) of this Section 6.2.
(d) LIQUIDATION. In the event of the liquidation or dissolution of the
Trust, the Shareholders of each Portfolio of which Shares are outstanding
shall be entitled to receive, when and as declared by the Trustees, the
excess of the Portfolio Assets over the liabilities of such Portfolio. The
assets so distributable to the Shareholders of any particular Portfolio
shall be undistributed among such Shareholders in proportion to the number
of Shares of that Portfolio held by them and recorded on the books of the
Trust. The liquidation of any particular Portfolio may be authorized by
vote of a Majority of the Trustees, subject to the affirmative vote of "a
majority of the outstanding voting securities" of that Portfolio, as the
quoted phrase is defined in the 1940 Act, determined in accordance with
clause (iii) of the definition of "MAJORITY SHAREHOLDER VOTE" in Section
1.4 hereof.
(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
Portfolio shall have the right at such times as may be permitted by the
Trust, but no less frequently than once each week, to require the Trust to
redeem all or any part of his Shares of that Portfolio at a redemption
price equal to the net asset value per Share of that Portfolio next
determined in accordance with subsection (h) of this Section 6.2 after the
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 Portfolio 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 Portfolio to require
the Trust to redeem Shares of that Portfolio during any period or at any
time when and to the extent permissible under the 1940 Act.
(g) REDEMPTION AT THE OPTION OF THE TRUST. Each Share of any Portfolio
shall be subject to redemption at the option of the Trust at the redemption
price which would be applicable if such Share were than being redeemed by
the Shareholder pursuant to subsection (f) of this Section 6.2: (i) at any
time, if the Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to the holders of the
Shares of the Trust or of any Portfolio, 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 of such Portfolio. 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 Portfolio at
any time shall be the quotient obtained by dividing the value of the net
assets of such Portfolio at such time (being the current value of the
assets belonging to such Portfolio, less its then existing liabilities) by
the total number of Shares of that Portfolio then outstanding, all
determined in accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the Trustees from
time to time. The Trustees may determine to maintain the net asset value
per Share of any Portfolio 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 Portfolio
as dividends payable in additional Shares of that Portfolio at the
designated constant dollar amount and for the handling of any losses
attributable to that Portfolio. 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 Portfolio his pro rata
portion of the total number of Shares required to be cancelled in order to
permit the net asset value per Share of that Portfolio 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 Portfolio 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 Portfolio shall be
transferable, but transfers of Shares of a particular Portfolio will be
recorded on the Share transfer records of the Trust applicable to that
Portfolio only at such times as Shareholders shall have the right to
require the Trust to redeem Shares of that Portfolio and at such other
times as may be permitted by the Trustees.
(j) EQUALITY. All Shares of each particular Portfolio shall represent
an equal proportionate interest in the assets belonging to that Portfolio
(subject to the liabilities of the Portfolio), and each Share of any
particular Portfolio shall be equal to each other 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 Portfolio. The Trustees
may from time to time divide or combine the Shares of any particular
Portfolio into a greater or lesser number of Shares of that Portfolio
without thereby changing the proportionate beneficial interest in the
assets belonging to that Portfolio or in any way affecting the rights of
the holders of Shares of any other Portfolio.
(k) RIGHTS OF FRACTIONAL SHARES. Any fractional Share of any Series
shall carry proportionately all the rights and obligations of a whole Share
of the Series, including rights and obligations with respect to voting,
receipt of dividends and distributions, redemption of Shares, and
liquidation of the Trust, if of the Portfolio to which they pertain.
(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 Portfolio shall have the right to convert said Shares into
Shares of one or more other Portfolios 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 Trust 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 Portfolio held from time to time by each such Shareholder.
The holders of Shares of each Portfolio shall upon demand disclose to the
Trustees in writing such information with respect to their direct and indirect
ownership of Shares of such Portfolio as the Trustees deem necessary to comply
with the provisions of the Internal Revenue Code, or to comply with the
requirements of any other authority.
SECTION 6.4. INVESTMENTS IN THE TRUST. The Trustees may accept investments
in any Portfolio 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,
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 purchase orders for Shares, whether or not conforming to such
authorized terms. SECTION 6.5. NO PRE-EMPTIVE RIGHTS. No Shareholder, by virtue
of holding Shares of any Portfolio, shall have any pre-emptive or other right to
subscribe to any additional Shares of that Portfolio; or to any shares of any
other Portfolio, or any other Securities issued by the Trust.
SECTION 6.5. NO PRE-EMPTIVE RIGHTS. No Shareholder, by virtue of holding
Shares of any Portfolio, shall have any pre-emptive or other right to subscribe
to any additional Shares of that Portfolio, or to any shares of any other
Portfolio, or any other Securities issued by 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 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 Portfolio, nor entitle the
representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Declaration of Trust.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1. VOTING POWERS. The 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 in accordance with
the 1940 Act of any contract with a Contracting Party as provided in Section 5.2
hereof as to which Shareholder approval is as required by the 1940 Act, (iii)
with respect to any termination or reorganization of the Trust or any Portfolio
to the extent and as provided in 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 Portfolio, or the
Shareholders of any of them (PROVIDED, HOWEVER, that a Shareholder of a
particular Portfolio shall not in any event be entitled to maintain a derivative
or class action on behalf of any other Portfolio or the Shareholders thereof),
and (vi) with respect to such additional matters relating to the Trust as may be
required by the 1940 Act, this Declaration of Trust, the By-Laws or any
registration of the Trust with the Commission (or any successor agency) or any
State, or as the Trustees may consider necessary or desirable. If and to the
extent that the Trustees shall determine that such action is required by law,
they shall cause each matter required or permitted to be voted upon at a meeting
or by written consent of Shareholders to be submitted to a separate vote of the
outstanding Shares of each Portfolio entitled to vote thereon; PROVIDED, that
(i) when expressly required by this Declaration or by the 1940 Act, actions of
Shareholders shall be taken by Single Class Voting of all outstanding Shares of
each Series whose holders are entitled to vote thereon; 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
Portfolios, then only the Shareholders of the Portfolios 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 notion to the
contrary from any one of them. A proxy purporting to be executed by or on behalf
of a Shareholder shall be deemed valid unless challenged at or prior to its
exercise and the burden of proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required by law, this Declaration of Trust or the
By-Laws to be taken by Shareholders.
SECTION 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 the Shareholders as herein provided, or upon
any other matter deemed by the Trustees to be necessary or desirable. Written
notice of any meeting of Shareholders shall be given or caused to be given by
the Trustees by mailing such notice at least seven (7) days before such meeting,
postage prepaid, stating the time, place and purpose of the meeting, to each
Shareholder at the Shareholder's address as it appears on the records of the
Trust. The Trustees shall promptly call and give notice of a meeting of
Shareholders for the purpose of voting upon removal of any Trustee of the Trust
when requested to do so in writing by Shareholders holding not less than ten
percent (10%) of the Shares then outstanding. 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 Shareholders holding at least ten percent (10%) of
the Shares then outstanding requesting that a meeting be called for any other
purpose requiring action by the Shareholders as provided herein or in the
By-Laws, then Shareholders holding at least ten percent (10%) of the Shares then
outstanding may call and give notice of such meeting, and thereupon the meeting
shall be held in the manner provided for herein in case of call thereof by the
Trustees.
SECTION 7.4. RECORDING DATES. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution, or
for the purpose of any other action, the Trustees may from time to time close
the transfer books for such period, not exceeding thirty (30) days (except at or
in connection with the termination of the Trust), as the Trustees determine; or
without closing the transfer books the Trustees may fix a date and time not more
than sixty (60) days prior to the date of any meeting of Shareholders or other
action as the date and time of record for the determination of Shareholders
entitled to vote at such meeting or any adjournment thereof or to be treated as
Shareholders of record for purposes of such other action, and any Shareholder
who was a Shareholder at the date and time to 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, 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. A majority of the Shares entitled to
vote shall be a quorum for the transaction of business at a Shareholders'
meeting, but any less 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 at a meeting of which a quorum is present shall decide any
question, except when a different vote is required or permitted by any provision
of the 1940 Act or other applicable law or by this Declaration of Trust or the
By-Laws, 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 express provision of this
Declaration of Trust or the By-Laws 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
to 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 By-Laws 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, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE.
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 or Persons in connection with the assets or the affairs of the Trust or
of any Portfolio, 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 or Persons in
connection with the assets or affairs of the Trust or of any Portfolio, save
only that arising from his own willful misfeasance, bad faith, gross negligence
or reckless disregard of his 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 Portfolio, that Portfolio) 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 Portfolio in tort,
contract or otherwise in connection with the assets or the affairs of the Trust
or such Portfolio, and all Persons dealing with the Trust or any Portfolio shall
be deemed to have agreed that resort shall be had solely to the Trust Property
of the Trust or the Portfolio Assets of such Portfolio, 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 give notice that this Declaration of Trust is on file
with the Secretary of The Commonwealth of Massachusetts and shall recite to the
effect that the same was executed or made by or on behalf of the Trust or by
them as Trustees or Trustee or as officers or officer, and not individually, and
that the obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Portfolio in question, as the case may be, but the
omission thereof shall not operate to bind any Trustees or Trustee or officers
or officer or Shareholders or Shareholder individually, or to subject the
Portfolio Assets of any Portfolio to the obligations of any other Portfolio.
SECTION 8.2. TRUSTEES' GOOD FAITH ACTION; EXPERT ADVICE; NO BOND OR SURETY.
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. Subject to Section 8.4 hereof, a Trustee shall
be liable for his own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. Subject to the foregoing, (i) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee, consultant, Investment Advisor, Administrator, Distributor or
Principal Underwriter, Custodian or Transfer Agent, Dividend Disbursing Agent,
Shareholder, Servicing Agent or Accounting Agent of the Trust, 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 appointed by the Trustees pursuant
to Section 5.2 hereof. 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 the heirs,
executors, administrators or other legal representatives thereof, 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 Portfolio 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, OFFICERS, ETC. Subject to the
limitations set forth hereinafter in this Section 8.4, the Trust shall indemnify
(from the assets of the Portfolio or Portfolios 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
[hereinafter, together with such Person's heirs, executors, administrators or
personal representative, referred to 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, director or trustee, 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 such Covered Person's 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 such Covered Person's office (either and both
of the conduct described in (i) and (ii) being referred to hereafter 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 of
other body before whom the proceeding was brought that the Covered Person to be
indemnified was not liable by reason of Disabling Conduct, (ii) dismissal of a
court action or an administrative proceeding against a Covered Person for
insufficiency of evidence of Disabling Conduct, or (iii) a reasonable
determination, based upon a review of the facts, that the indemnitee was not
liable by reason Disabling Conduct by (a) a vote of a majority of a quorum of
Trustees who are neither "interested persons" of the Trust as defined in Section
2(a)(19) of the 1940 Act nor parties to the proceeding, 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 Portfolio or Portfolios 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 to such Portfolio or Portfolios if it is ultimately determined
that indemnification of such expenses is not authorized under this Article VIII
and (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 a quorum 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 trial-type inquiry),
that there is reason to believe that the Covered Person ultimately will be found
entitled to indemnification.
SECTION 8.5. COMPROMISE PAYMENT. As to any matter disposed of by a
compromise payment by any such 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 a quorum of the
disinterested Trustees or (ii) by an independent legal counsel in a written
opinion. Approval by the Trustees pursuant to clause (i) or by independent legal
counsel pursuant to clause (ii) 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 persons 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, ETC. The right of
indemnification provided by this Article VIII shall not be exclusive of or
affect any other rights to which any such Covered Person may be entitled. As
used in this Article VIII, a "DISINTERESTED" Person is one against whom none of
the actions, suits or other proceedings in question, and no other action, suit
or other proceeding on the same or similar grounds is then or has been pending
or threatened. 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, alternation or
modification with respect to any Portfolio 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 Portfolio 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
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. Upon termination, after paying or otherwise providing for all
charges, taxes, expenses and liabilities, whether due to 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 of 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 assets of the Trust, or the assets belonging to any
one or more Portfolios, to another trust, partnership, association or
corporation organized under the laws of any state of the United States, or may
transfer such assets to another Portfolio of the Trust, in exchange for cash,
Shares or other Securities (including, in the case of a transfer to another
Portfolio of the Trust, Shares of such other Portfolio), or to the extent
permitted by law then in effect may merge or consolidate the Trust or any
Portfolio with any other Trust or any corporation, partnership, or association
organized under the laws of any state of United States, all upon such terms and
conditions and for such consideration when and as authorized by vote or written
consent of a Majority of the Trustees and approved by the affirmative vote of
the holders of not less than a majority of the Shares outstanding and entitled
to vote of each Portfolio whose assets are affected by such termination, 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, and/or by such other vote of
any Series as may be established by the Certificate of Designation with respect
to such Series. 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 indebtedness of, and any other
differences among, the various Portfolios of which the assets have so been
transferred) among the Shareholders of the Portfolio 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 or 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 Portfolio
to such organizations or entities.
SECTION 9.3. AMENDMENTS, ETC. All rights granted to the Shareholders under
this Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or 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 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 Portfolios, by the vote of the holders of a
majority of all the Shares entitled to vote of each Portfolio so affected.
Subject to the foregoing, any such amendment shall be effective when the
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 and
acknowledged by a Trustee or officer of the Trust and filed as provided in
Section 9.4 hereof.
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), as well as the
certificates called for by Section 4.1(k) hereof as to changes in the Trustees
shall be kept at the 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
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
thereto 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, certifying to:
(a) the number or identity of Trustees or Shareholders, (b) the due
authorization of the execution of any instrument or writing, (c) the form of any
vote passed as a meeting of Trustees or Shareholders, (d) 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, (e)
the form of any By-Law adopted, or the identity of any officers elected, by the
Trustees, or (f) the existence or non-existence 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.
SECTION 10.5. USE OF THE NAME "XXXXX". Xxxxx Associates, Inc. ("Xxxxx") has
consented to the use by the Trust of the identifying name ("Xxxxx"), which is a
property right of Xxxxx. The Trust will only use the name "Xxxxx" as a component
of its name and for no other purpose, and will not purport to grant to any third
party the right to use the name "Xxxxx" for any purpose. Xxxxx or any corporate
affiliate of Xxxxx may use or grant to others the right to use the name "Xxxxx",
as all or a portion of a corporate or business name or for any commercial
purpose, including a grant of such right to any other investment company. At the
request of Xxxxx, the Trust will take such action as may be required to provide
its consent to the use of such name by Xxxxx, or any corporate affiliate of
Xxxxx, or by any Person to whom Xxxxx or an affiliate of Xxxxx shall have
granted the right to the use of the name "Xxxxx". Upon the termination of any
investment advisory or management agreement into which Xxxxx and the Trust may
enter, the Trust shall, upon request by Xxxxx, cease to use the name "Xxxxx" as
a component of its name, and shall not use such name or initials as a part of
its name or for any other commercial purpose, and shall cause its officers and
Trustees to take any and all actions which Xxxxx may request to effect the
foregoing and to reconvey, to Xxxxx or such corporate affiliate any and all
rights to such name.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal, for
himself and his assigns, and has thereby accepted the Trusteeship as the initial
Trustee of The Xxxxx Fund hereby granted and agreed to the provisions hereof,
all as of the day and year first above written.
/s/Xxxxx X. Xxxxx
--------------
Xxxxx X. Xxxxx
The undersigned Settler of The Xxxxx Fund, hereby accepts, approves and
authorizes the foregoing Agreement and Declaration of Trust of The Xxxxx Fund.
Date: March 20, 1986
/s/Xxxxx X. Xxxxxxxx
---------------
Xxxxx X. Xxxxxxxx
ACKNOWLEDGMENTS
MASSACHUSETTS
Suffolk, ss:
March 20, 1986
Then personally appeared the above named Xxxxx X. Xxxxx and
acknowledged the foregoing instrument to be his free act and deed.
Before me,
/s/ Xxxxxxxx X. XxXxxxxx
-----------------------
Notary Public
MASSACHUSETTS
Suffolk, ss.:
March 20, 1986
Then personally appeared the above named Xxxxx X. Xxxxxxxx and
acknowledged the foregoing instrument to be his free act and deed.
Before me,
/s/ Xxxxxxxx X. XxXxxxxx
-----------------------
Notary Public
