Exhibit 1
THE FULCRUM TRUST RESTATED AGREEMENT
AND
DECLARATION OF TRUST
TABLE OF CONTENTS
Page
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ARTICLE I - THE TRUST
Section 1.1 Name............................................................................. 5
Section 1.2 Definitions...................................................................... 6
ARTICLE II - TRUSTEES
Section 2.1 Management of the Trust.......................................................... 7
Section 2.2 Election of Trustees............................................................. 7
Section 2.3 Term of Office of Trustees....................................................... 7
Section 2.4 Termination of Service and Appointment of Trustees............................... 7
Section 2.5 Number of Trustees............................................................... 8
Section 2.6 Effect of Death, Resignation, etc. of a Trustee.................................. 8
Section 2.7 Ownership of the Trust........................................................... 8
ARTICLE III - POWERS OF TRUSTEES
Section 3.1 General.......................................................................... 8
Section 3.2 Investments...................................................................... 9
Section 3.3 Legal Title...................................................................... 9
Section 3.4 Issuance and Repurchase of Securities............................................ 9
Section 3.5 Borrow Money..................................................................... 10
Section 3.6 Officers; Delegation; Committees................................................. 10
Section 3.7 Collection and Payment........................................................... 10
Section 3.8 Expenses......................................................................... 10
Section 3.9 Manner of Acting; By-laws........................................................ 10
Section 3.10 Voting Trusts.................................................................... 11
Section 3.11 Miscellaneous Powers............................................................. 11
Section 3.12 Further Powers................................................................... 11
ARTICLE IV - ADVISORY, MANAGEMENT AND DISTRIBUTION
ARRANGEMENTS
Section 4.1 Management Arrangements.......................................................... 12
Section 4.2 Distribution Arrangements........................................................ 12
Section 4.3 Parties to Contract.............................................................. 12
Section 4.4 Provisions and Amendments........................................................ 13
ARTICLE V - LIMITATIONS OF LIABILITY OF SHAREHOLDERS,
TRUSTEES AND OTHERS
Section 5.1 Trustees, Shareholders, etc. Not Personally Liable; Notice....................... 13
Section 5.2 Trustee's Good Faith Action; Expert Advice; No Bond or Surety.................... 13
Section 5.3 Indemnification of Shareholders.................................................. 14
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Section 5.4 Indemnification of Trustees, Officers, etc....................................... 14
Section 5.5 Compromise Payment............................................................... 15
Section 5.6 Indemnification Not Exclusive, etc............................................... 15
Section 5.7 Liability of Third Persons Dealing with Trustees................................. 15
ARTICLE VI - SHARES OF BENEFICIAL INTEREST
Section 6.1 Beneficial Interest.............................................................. 16
Section 6.2 Portfolio Designation............................................................ 16
Section 6.3 Rights of Shareholders........................................................... 18
Section 6.4 Trust Only....................................................................... 19
Section 6.5 Issuance of Shares............................................................... 19
Section 6.6 Register of Shares............................................................... 19
Section 6.7 Transfer Agent and Registrar..................................................... 19
Section 6.8 Transfer of Shares............................................................... 20
Section 6.9 Notice........................................................................... 20
ARTICLE VII - CUSTODIANS
Section 7.1 Appointment and Duties........................................................... 20
Section 7.2 Action Upon Termination of Custodian Agreement................................... 21
Section 7.3 Central Certificate System....................................................... 21
Section 7.4 Acceptance of Receipts in Lieu of Certificates................................... 21
ARTICLE VIII - REDEMPTION
Section 8.1 Redemptions...................................................................... 22
Section 8.2 Redemptions of Accounts of Less Than a Minimum Dollar Amount..................... 22
ARTICLE IX - DETERMINATION OF NET ASSET VALUE, NET
INCOME AND DISTRIBUTIONS
Section 9.1 Net Asset Value.................................................................. 22
Section 9.2 Distributions to Shareholders.................................................... 22
Section 9.3 Power to Modify Foregoing Procedures............................................. 23
ARTICLE X - SHAREHOLDERS
Section 10.1 Voting Powers.................................................................... 23
Section 10.2 Meetings......................................................................... 24
Section 10.3 Quorum and Required Votes........................................................ 24
Section 10.4 Record Date for Meetings......................................................... 24
Section 10.5 Proxies.......................................................................... 24
Section 10.6 Additional Provisions............................................................ 24
Section 10.7 Reports.......................................................................... 25
Section 10.8 Shareholder Action by Written Consent............................................ 25
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ARTICLE XI - DURATION; TERMINATION OF TRUST; AMENDMENT;
MERGERS, ETC.
Section 11.1 Duration......................................................................... 25
Section 11.2 Termination...................................................................... 25
Section 11.3 Reorganization................................................................... 26
Section 11.4 Amendment Procedure.............................................................. 27
Section 11.5 Incorporation.................................................................... 27
ARTICLE XII - MISCELLANEOUS
Section 12.1 Filing........................................................................... 28
Section 12.2 Resident Agent................................................................... 28
Section 12.3 Governing Law.................................................................... 28
Section 12.4 Counterparts..................................................................... 28
Section 12.5 Reliance by Third Parties........................................................ 28
Section 12.6 Provisions in Conflict with Law or Regulations................................... 29
Section 12.7 Principal Business Address....................................................... 29
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RESTATED AGREEMENT AND
DECLARATION OF TRUST
OF
THE FULCRUM TRUST
THE RESTATED AGREEMENT AND DECLARATION OF TRUST made the 6/th/ day of December
2000 by the parties signatory hereto, as trustees (such persons, so long as they
shall continue in office in accordance with the terms of this Agreement and
Declaration of Trust, and all other persons who at the time in question have
been duly elected or appointed as trustees in accordance with the provisions of
this Restated Agreement and Declaration of Trust and are then in office, being
hereinafter called the "Trustees")
WITNESSETH
WHEREAS, the Trustees desire to form a trust fund under the laws of the
Commonwealth of Massachusetts for the investment and reinvestment of funds
contributed thereto; and
WHEREAS, it is proposed that the beneficial interest in the trust assets be
divided into transferable shares of beneficial interest, which may, at the
discretion of the Trustees, be divided into separate portfolios as hereinafter
provided;
NOW, THEREFORE, the Trustees hereby declare that they will hold in trust
all money and property contributed to the trust fund to manage and dispose of
the same for the benefit of the holders from time to time of the shares of
beneficial interest issued hereunder and subject to the provisions hereof, to
wit:
ARTICLE I
The Trust
Section 1. 1 Name. The name of the trust created hereby (the "Trust"),
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which term shall be deemed to include any portfolio of the Trust when the
context requires, shall be "The Fulcrum Trust", and so far as may be
practicable the Trustees shall conduct the activities of the Trust, execute all
documents and xxx or be sued under that name, which name (and the word "Trust"
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wherever hereinafter used) shall refer to the Trustees as Trustees, and not
individually, and shall not refer to the officers, agents, employees or
shareholders of the Trust or any Portfolio thereof.
Each Portfolio of the Trust shall be established and designated by the Trustees
pursuant to Section 6.2 and each Portfolio shall conduct its activities under
such name as the Trustees shall determine and set forth in the instrument
establishing such Portfolios. Should the Trustees determine that the use of the
name of the Trust or any Portfolio is not advisable, they may select such other
name for the Trust or such Portfolio as they deem proper and the Trust or such
Portfolio may conduct its activities under such other name. Any name change
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shall be effective upon the execution by a majority of the then Trustees of an
instrument setting forth the new name. Any such instrument shall have the status
of an amendment to this Restated Agreement and Declaration of Trust.
Section 1.2 Definitions. As used in this Restated Agreement and Declaration
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of Trust, the following terms shall have the following meanings:
The "1940 Act" refers to the Investment Company Act of 1940 as amended
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from time to time and the regulations promulgated thereunder.
The terms "Affiliated Person", "Assignment", "Commission",
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"Interested Person", "Majority Shareholder Vote" (the 67% or 50% requirement of
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the third sentence of Section 2(a)(42) of the 1940 Act, whichever may be
applicable) and "Principal Underwriter " shall have the meanings given them in
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the 1940 Act. "Commission" shall mean the U.S. Securities and Exchange
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Commission.
"Declaration" or "Declaration of Trust" shall mean this Restated
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Agreement and Declaration of Trust as amended from time to time. References in
this Declaration to "Declaration", "hereof", "herein" and "hereunder" shall be
deemed to refer to the Declaration rather than the article or section in which
such words appear.
"Fundamental Policies" shall mean the investment objective for each
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Portfolio and the investment restrictions set forth in the registration
statement for the Trust on Form N-1A and designated as fundamental policies
therein.
"Person" shall mean and include individuals, corporations,
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partnerships, trusts, associations, joint ventures and other entities, whether
or not legal entities, and governments and agencies and political subdivisions
thereof.
"Prospectus" shall mean the currently effective prospectus of any
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Portfolio of the Trust under the Securities Act of 1933, as amended.
"Portfolio" shall mean any separate Portfolio that may be established
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and designated pursuant to Section 6.2.
"Shareholders" shall mean as of any particular time all holders of
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record of outstanding Shares at such time.
"Shares" shall mean the equal proportionate transferable units of
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interest into which the beneficial interest in any Portfolio of the Trust shall
be divided from time to time and includes fractions of Shares as well as whole
Shares. All references to Shares shall be deemed to be Shares of any or all
Portfolios as the context may require.
"Trustees" shall mean the signatories to this Declaration, so long as
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they shall continue in office in accordance with the terms hereof and all other
persons who at the time in question have been duly elected or appointed and have
qualified as Trustees in accordance with the provisions hereof and are then in
office, and eachsuch person is herein referred to as the
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"Trustee", and reference in this Declaration to a Trustee or Trustees shall
refer to such person or persons in their capacity as Trustee hereunder.
"Trust Property" shall mean as of any particular time any and all
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property, real or personal tangible or intangible, which at such time is owned
or held by or for the account of the Trust, any Portfolio thereof or the
Trustees.
ARTICLE II
Trustees
Section 2.1 Management of the Trust. The business and affairs of the Trust
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shall be managed by the Trustees, and they shall have all powers necessary and
desirable to carry out that responsibility.
Section 2.2 Election of Trustees. Except for the Trustees named herein, if
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any, and those Trustees designated by such Trustees prior to the issuance of
Shares, or appointed to fill vacancies pursuant to Section 2.4 hereof, the
Shareholders of the Trust shall elect Trustees at Shareholder meetings called
for that purpose. The Trustees need not be elected annually or at regular
intervals. Except as provided in Section 10.2, the Trustees shall not be
required to call a meeting of Shareholders for the purpose of electing Trustees,
provided, however, that in the event that at any time, other than the time
preceding the first meeting of Shareholders for the purpose of electing
Trustees, less than a majority of the Trustees holding office at that time were
elected by the Shareholders, a meeting of the Shareholders for the purpose of
electing Trustees shall be held promptly and in any event within 60 days (unless
the Commission shall by order extend such period). No election of a Trustee
shall become effective, however, until the person elected shall have accepted
such election and agreed in writing to be bound by the terms of this
Declaration. If re-elected, a Trustee may succeed himself. Trustees need not own
shares.
Section 2.3 Term of Office of Trustees. A Trustee duly appointed or elected
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hereunder shall hold office until the occurrence of any of the following: (a)
the Trustee may resign his trust by written instrument signed by him and
delivered to the other Trustees, which shall take effect upon such delivery or
upon such later date as is specified therein; (b) the Trustee may be removed at
any time by written instrument signed by a majority of the number of Trustees
prior to such removal, specifying the date when such removal shall become
effective; (c) the Trustee who requests in writing to be retired or who has
become mentally or physically incapacitated may be retired by written instrument
signed by a majority of the other Trustees, specifying the date of his
retirement; and (d) the Trustee may be removed at any meeting of Shareholders of
the Trust by a vote of two-thirds of the outstanding Shares or by a written
declaration executed, without a meeting, by the holders of not less than two-
thirds of the outstanding Shares. A meeting for the purpose of considering the
removal of a person serving as trustee shall be called by the trustees if
requested in writing to do so by the holders (which for purposes of this
provision and only this provision shall be the persons having a voting interest
in the shares of the Trust) of not less than 10% of the outstanding shares of
the Trust.
Section 2.4 Termination of Service and Appointment of Trustees. In case of
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the death, resignation, retirement, removal or mental or physical incapacity of
any of the Trustees, or in
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case a vacancy shall, by reason of an increase in number, or for any other
reason, exist, the remaining Trustees may (but need not unless required by the
1940 Act, so long as there are at least two remaining Trustees) fill such
vacancy by appointing for the remaining term of the predecessor Trustee such
other person as they in their discretion shall see fit. Such appointment shall
be effective upon the signing of a written instrument by a majority of the
Trustees in office and the written acceptance of this Declaration by the
appointee. An appointment of a Trustee may be made by the Trustees then in
office in anticipation of a vacancy to occur by reason of retirement,
resignation or increase in number of Trustees effective at a later date,
provided that said appointment shall become effective only at or after the
effective date of said retirement, resignation or increase in number of Trustees
and the written acceptance of this Declaration by the appointee. As soon as any
Trustee so appointed shall have accepted this Trust, the trust estate shall vest
in the new Trustee or Trustees, together with the continuing Trustees, without
any further act of conveyance, and he shall be deemed a Trustee hereunder. Any
appointment authorized by this Section 2.4 is subject to the provisions of
Section 16(a) of the 1940 Act.
Section 2.5 Number of Trustees. The number of Trustees serving hereunder at
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any time shall be determined by the Trustees themselves, but once Shares have
been issued shall not be less than two (2) or more than fifteen (15).
Section 2.6 Effect of Death. Resignation. etc. of a Trustee. The death,
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resignation, retirement, removal, or mental or physical incapacity of the
Trustees, or any one of them shall not operate to annul or terminate the Trust
or any Portfolio hereunder or to revoke or terminate any existing agency or
contract created pursuant to the terms of this Declaration, and until such
vacancy is filled, the Trustees in office, regardless of their number, shall
have all of the powers granted to the Trustees and shall discharge all the
duties imposed upon them by this Declaration.
Section 2.7 Ownership of the Trust. The assets of the Trust shall be held
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separate and apart from any assets now or hereafter held in any capacity other
than as Trustee hereunder by the Trustees or by any successor Trustees. All of
the assets of the Trust shall at all times be considered as vested in the
Trustees. No Shareholder shall be deemed to have a severable ownership in any
individual asset of the Trust or any right of partition or possession thereof,
but each Shareholder shall have a proportionate undivided beneficial interest in
the Trust.
ARTICLE III
Powers of Trustees
Section 3.1 General. The Trustees in all instances shall act as principals,
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and are and shall be free from the control of the Shareholders. The Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or appropriate in connection with the management of the Trust. The Trustees
shall not be bound or limited by present or future laws or customs with regard
to investment by trustees or fiduciaries, but shall have full authority and
absolute power and control over the Trust Property and business of the Trust to
the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, including such authority, power and control to
do all acts and things as they, in their uncontrolled discretion,
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shall deem proper to accomplish the purposes of this Trust. The enumeration of
any specific power herein shall not be construed as limiting the aforesaid
powers.
Section 3.2 Investments. The Trustees shall have power, subject to the
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Fundamental Policies, to:
(a) conduct, operate and carry on the business of an investment
company;
(b) subscribe for, invest in, reinvest in, purchase or otherwise
acquire, hold, pledge, sell, assign, transfer, lend, exchange, mortgage,
hypothecate, lease, distribute or otherwise deal in or dispose of common
stocks, preferred stocks, bonds, debentures, warrants and rights to
purchase securities, mortgage related securities such as mortgage-backed
securities and collateralized mortgage obligations, options on securities,
futures contracts and options on futures contracts, covered spread options,
certificates of beneficial interest, negotiable or non-negotiable
instruments, bank obligations, evidences of indebtedness, privately placed
debt securities, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, reverse repurchase agreements, firm commitment
agreements and "when-issued" securities and other securities, including,
without limitation, those issued, guaranteed or sponsored by any state,
territory or possession of the United States and the District of Columbia
and their political subdivisions, agencies and instrumentalities, or by the
United States Government or its agencies or instrumentalities, or
international instrumentalities, or by any bank, savings institution.
corporation or other business entity organized under the laws of the United
States and, to the extent provided in the Prospectus and not prohibited by
the Fundamental Policies of the Trust, foreign securities of issuers or
governments organized under foreign laws; and to exercise any and all
rights, powers and privileges of ownership or interest in respect of any
and all such investments of every kind and description, with power to
designate one or more persons, firms, associations or corporations to
exercise any of said rights, powers and privileges in respect of any of
said instruments, and the Trustees shall be deemed to have the foregoing
powers with respect to any additional securities in which any Portfolio of
the Trust may invest should the investment policies set forth in the
Prospectus or the Fundamental Policies by amended.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust or any Portfolio.
Section 3.3 Legal Title. Legal title to all the Trust Property shall be
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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 any Portfolio
thereof, 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 or any Portfolio
thereof is appropriately protected.
Section 3.4 Issuance and Repurchase of Securities. The Trustees shall
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have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including shares in fractional denominations, and, subject to the more detailed
provisions set forth in Articles VIII and IX to apply to any such repurchase,
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redemption, retirement, cancellation or acquisition of Shares any funds or
property of the applicable Portfolio of the Trust whether capital or surplus or
otherwise, to the full extent now or hereafter permitted by the laws of the
Commonwealth of Massachusetts governing business corporations.
Section 3.5 Borrow Money. Subject to the Fundamental Policies, the
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Trustees shall have power to borrow money or otherwise obtain credit and to
secure the same by mortgaging, pledging or otherwise subjecting as security the
assets of the Trust or any Portfolio thereof, including the lending of portfolio
securities, and to endorse, guarantee or undertake the performance of any
obligation, contract or engagement of any other person, form, association or
corporation.
Section 3.6 Officers; Delegation; Committees. The Trustees may, as they
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consider appropriate, elect and remove officers and appoint and terminate agents
and consultants and hire and terminate employees, any one or more of the
foregoing of whom may be a Trustee and may provide for the compensation of all
of the foregoing. The Trustees shall have power, consistent with their
continuing exclusive authority over the management of the Trust and the Trust
Property, to delegate from time to time to such of their number or to officers,
employees or agents of the Trust the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient. The Trustees may appoint from
their number and terminate any one or more committees consisting of two or more
Trustees, including without implied limitation an Executive Committee which may,
when the Trustees are not in session and subject to the 1940 Act, exercise some
or all of the powers and authority of the Trustees as the Trustees may
determine.
Section 3.7 Collection and Payment. The Trustees shall have power to
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collect a property due to the Trust or any Portfolio thereof, to pay all claims,
including taxes, against the Trust Property; to prosecute, defend, compromise,
arbitrate or abandon any claims relating to the Trust Property; to foreclose any
security interest securing any obligations, by virtue of which any property is
owed to the Trust or any Portfolio thereof, and to enter into releases,
agreements and other instruments.
Section 3.8 Expenses. The Trustees shall have power to incur and pay any
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expenses which in the opinion of the Trustees are necessary or incidental to
carry out any of the purposes of the Trust or any Portfolio, and to pay
reasonable compensation from the funds of the Trust to themselves as Trustees.
The Trustees shall fix the compensation of all officers, employees and Trustees.
The Trustees may pay themselves such compensation for special services,
including legal underwriting, syndicating and brokerage services, as they in
good faith may deem reasonable and reimbursement for expenses reasonably
incurred by themselves on behalf of the Trust.
Section 3.9 Manner of Acting; By-laws. Except as otherwise provided herein
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or in the By-laws or required by the 1940 Act, any action to be taken by the
Trustees may be taken by a majority of the Trustees present at a meeting of the
Trustees (a quorum being present), including any meeting held by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, or by written consents
of a majority of Trustees then in office (or such larger or different number as
may be
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required by the 1940 Act or other applicable law). The Trustees may adopt and
from time to time amend or repeal the By-laws for the conduct of the business of
the Trust.
Section 3.10 Voting Trusts. The Trustees shall have power and authority
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for and on behalf of the Trust to join with other holders of any securities or
debt instruments in acting through a committee, depository, voting trustee or
otherwise, and in that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any such committee,
depository or trustee, and to delegate to them such power and authority with
relation to any security or debt instrument (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, such
portion of the expenses and compensation of such committee, depository or
trustee as the Trustees shall deem proper.
Section 3.11 Miscellaneous Powers. The Trustees shall have the power to:
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(a) employ or contract with such Persons as the Trustees may deem desirable for
the transaction of the business of the Trust or any Portfolio thereof, (b) enter
into joint ventures, partnership and any other combinations or associations; (c)
purchase, and pay for out of Trust Property, insurance as they deem necessary or
appropriate for the conduct of the business, including without limitation,
policies insuring the Shareholders, Trustees, officers, employees, agents,
managers, investment advisers, distributors, selected dealers or independent
contractors of the Trust or any Portfolio thereof against all claims arising by
reason of holding any such position or by reason of any action taken or omitted
by any such Person in such capacity, whether or not constituting negligence, or
whether or not the Trust would have the power to indemnify such Person against
such liability; (d) establish pension, profit-sharing, share purchase, and other
retirement, incentive and benefit plans for any Trustees, officers, employees
and agents of the Trust; (e) make donations, irrespective of benefit to the
Trust, for charitable, religious, educational, scientific, civic or similar
purposes; (f) to the extent permitted by law, indemnify any Person with whom the
Trust or any Portfolio thereof has dealings, including any adviser,
administrator, manager, distributor and selected dealers with respect to any
Portfolio. To such extent as the Trustees shall determine; (g) guarantee
indebtedness or contractual obligations of others; (h) determine and change the
fiscal year of the Trust and the method in which its accounts shall be kept; and
(i) adopt a seal for the Trust, provided that the absence of such seal shall not
impair the validity of any instrument executed on behalf of the Trust.
Section 3.12 Further Powers. The Trustees shall have power to conduct the
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business of the Trust or any Portfolio thereof, carry on its operations and
maintain offices both within and without the Commonwealth of Massachusetts, in
any and all states of the United States of America, in the District of Columbia,
and in any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United States of America and
of foreign governments, and to do all such other things and execute all such
instruments as they deem necessary, proper or desirable in order to promote the
interests of the Trust or any Portfolio thereof although such things are not
herein specifically mentioned. Any determination as to what is in the interests
of the Trust or any Portfolio thereof made by the Trustees in good faith shall
be conclusive. In construing the provisions of this Declaration the presumption
shall be in favor of a grant of power to the Trustees. The Trustees will not be
required to obtain any court order to deal with the Trust Property. No Trustee
shall be required to give any bond or other security for the performance of any
of his duties hereunder.
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ARTICLE IV
Advisory, Management and Distribution Arrangements
Section 4.1 Advisory and Management Arrangements. Subject to a Majority
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Shareholder Vote, if required by law, of the Trust or the applicable Portfolio,
the Trustees may in their discretion from time to time enter into advisory,
management, or administrative contracts whereby the other party to such contract
shall undertake to furnish to the Trust or one or more Portfolios thereof such
advisory, management and/or administrative services, with respect to one or more
Portfolios as the Trustees shall from time to time consider desirable and all
upon such terms and conditions as the Trustees may in their discretion
determine. Subject to a Majority Shareholder Vote if required by law, the
Trustees and/or the investment adviser or manager may engage one or more firms
to serve as portfolio manager to a Portfolio pursuant to a portfolio management
contract in which the portfolio manager makes all determinations with respect to
the purchase and sale of portfolio securities and places, in the names of one or
more Portfolios all orders for execution of the portfolio transactions upon such
terms and conditions and for such compensation as the Trustees may in their
discretion approve. A portfolio manager may, in turn, engage its own sub-
advisers in managing a particular Portfolio. Notwithstanding any provisions of
this Declaration, the Trustees may authorize any manager, adviser, portfolio
manager, or administrator (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 any Portfolio of the Trust on behalf of the
Trustees or may authorize any officer, employee or Trustee to effect such
purchases, sales, loans or exchanges pursuant to recommendations of any such
manager, adviser, portfolio manager or administrator (and all without further
action by the Trustees). Any such purchases, sales, loans or exchanges shall be
deemed to have been authorized by all of the Trustees.
Section 4.2 Distribution Arrangements. The Trust may in their discretion
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from time to time enter into a contract, providing for the sale of the Shares of
the Trust or any Portfolio of the Trust, whereby the Trust may either agree to
sell the Shares to the other party to the contract or appoint such other party
as its sales agent for such Shares. In either case, the contract shall be on
such terms and conditions as the Trustees may in their discretion determine to
be not inconsistent with the provisions of this Article IV or the By-laws; and
such contract may also provide for the repurchase or sale of Shares by such
other party as principal or as agent of the Trust and may provide that such
other party may enter into selected dealer agreements with registered securities
dealers to further the purpose of the distribution or repurchase of the Shares.
The Trustees may adopt a Distribution Plan pursuant to Rule 12b-1 of the 1940
Act and may authorize the Trust to make payments from its assets pursuant to
such Plan.
Section 4.3 Parties to Contract. Any contract of the character described
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in Sections 4.1 and 4.2 of this Article IV or in Article VII hereof may be
entered into with any corporation, firm, trust or association, although one or
more of the Trustees or officers of the Trust may be an officer, director,
Trustee, shareholder or member of such other party to the contract, and no such
contract shall be invalidated or rendered voidable by reason of the existence of
any such relationship, nor shall any person holding such relationship be liable
merely by reason of such relationship for any loss or expense to the Trust under
or by reason of said contract or
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accountable for any profit realized directly or indirectly therefrom, provided
that the contract when entered into was reasonable and fair and not inconsistent
with the provisions of this Article IV or the By-laws. The same person
(including a firm, corporation, trust or association) may be the other party to
contracts entered into pursuant to Sections 4.1 and 4.2 above or Article VII,
and any individual may be financially interested or otherwise affiliated with
persons who are parties to any or all of the contracts mentioned in this Section
4.3.
Section 4.4 Provisions and Amendments. Any contract entered into pursuant
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to Sections 4.1 and 4.2 of this Article IV shall, to the extent applicable be
consistent with and subject to the requirements of Section 15 of the 1940 Act
with respect to its continuance in effect, its termination, and the method of
authorization and approval of such contract or renewal thereof, and no amendment
to any contract entered into pursuant to Section 4.1 shall be effective unless
consented to by a Majority Shareholder Vote of the applicable Portfolio if
required by law.
ARTICLE V
Limitations of Liability of Shareholders, Trustees and Others
Section 5.1 Trustees, Shareholders, etc. Not Personally Liable; Notice.
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All persons extending credit to, contracting with or having any claim against
the Trust shall look only to the assets of the Portfolio with which such person
dealt for payment under such credit, contract or claim; and neither the
Shareholders of any Portfolio nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, nor any other Portfolio
shall be personally liable therefor. Every note, bond, contract, instrument,
certificate or undertaking and every other act or thing whatsoever executed or
done by or on behalf of the Trust, any Portfolio or the Trustees or any of them
in connection with the Trust shall be conclusively deemed to have been executed
or done only by or for the Trust (or the Portfolio) or the Trustees and not
personally. Nothing in this Declaration shall protect any Trustee or officer
against any liability to the Trust or the Shareholders to which such Trustee or
officer would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
the office of Trustee or of such officer.
Every note, bond, contract, instrument, certificate, share or undertaking
made or issued by the Trustees or by any officers or officer shall give notice
that this Declaration 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.
Section 5.2 Trustee's Good Faith Action: Expert Advice; No Bond or Surety.
-------------------------------------------------------------
The exercise by the Trustees of their powers and discretion hereunder shall be
binding upon everyone interested. A Trustee shall be liable for his own willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and for
13
nothing else, and shall not be liable for errors of judgment or mistakes of fact
or law. Subject to the foregoing, (a) the Trustees shall not be responsible or
liable in any event for any neglect or wrongdoing of any officer, agent,
employee, consultant, adviser, manager, administrator, distributor or principal
underwriter, custodian or transfer, dividend disbursing, Shareholder servicing
or accounting agent of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee; (b) the Trustees may take advice of
counsel or other experts with respect to the meaning and operation of this
Declaration and their duties as Trustees, and shall be under no liability for
any act or omission in accordance with such advice or for failing to follow such
advice; and (c) in discharging their duties, the Trustees, when acting in good
faith, shall be entitled to rely upon the books of account of the Trust and upon
written reports made to the Trustees by any officer appointed by them any
independent public accountant, and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of any adviser,
administrator, manager, distributor, selected dealer, appraiser or other expert,
consultant or agent. 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 5.3 Indemnification of Shareholders. In case any Shareholder (or
-------------------------------
former Shareholder) of any Portfolio 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, said Portfolio (upon proper and timely
request by the Shareholder) shall assume the defense against such charge and
satisfy any judgment thereon, and the Shareholder or former Shareholder (or his
heirs, executors, administrators or other legal representatives or in the case
of a corporation or other entity, its corporate or other general successor)
shall be entitled out of the assets of said Portfolios estate to be held
harmless from and indemnified against all loss and expense arising from such
liability.
Section 5.4 Indemnification of Trustees; Officers. etc. The Trust shall
------------------------------------------
indemnify (from the assets of the Portfolio or Portfolio in question) each of
its Trustees and officers (including persons who serve at the Trust's request as
directors, officers or trustees of another organization in which the Trust has
any interest as a shareholder, creditor or otherwise) [hereinafter referred to
as a "Covered Person"] against all liabilities, 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 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 or other body before whom the proceeding was brought that the person to
be indemnified was not liable by reason of Disabling Conduct, (ii) dismissal of
a court action or an
14
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 of 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 in question 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 the Portfolio in question if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article V 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 who are not a party to the proceeding, 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 5.5 Compromise Payment. As to any matter disposed of by a
------------------
compromise payment by any such Covered Person referred to in Section 5.4,
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 (a) by a majority of the disinterested
Trustees who are not parties to the proceeding or (b) by an independent legal
counsel in a written opinion. Approval by the Trustees pursuant to clause (a) or
by independent legal counsel pursuant to clause (b) shall not prevent the
recovery from any Covered Person of any amount paid to such Covered Person in
accordance with any of such clauses as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction not to have acted
in good faith in the reasonable belief that such Covered Person's action was in
or not opposed to the best interests of the Trust or to have been liable to the
Trust or its Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office.
Section 5.6 Indemnification Not Exclusive. etc. The right of
----------------------------------
indemnification provided by this Article V shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this Article V, "Covered Person" shall include such person's heirs, executors
and administrators; "interested Covered Person" is one against whom the action,
suit or other proceeding in question or another action, suit or other proceeding
on the same or similar grounds is then or has been pending or threatened, and a
"disinterested" person is a person against whom none of such actions, suits or
other proceedings or another action, suit or other proceeding on the same or
similar grounds is then or has been pending or threatened. Nothing contained in
this Article shall affect any rights to indemnification to which personnel of
the Trust, other than Trustees and officers, and other persons 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 5.7 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
15
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 VI
Shares of Beneficial Interest
Section 6.1 Beneficial Interest. The interest of the beneficiaries
-------------------
hereunder shall be divided into transferable shares of beneficial interest with
par value $.001 per share. The number of such shares of beneficial interest
authorized hereunder is unlimited. All Shares issued hereunder including,
without limitation, Shares issued in connection with a dividend in Shares or a
split of Shares, shall be fully paid and nonassessable.
Section 6.2 Portfolio Designation. The Trustees, in their discretion from
---------------------
time to time, may authorize the division of Shares into additional Portfolios,
each additional Portfolio relating to a separate portfolio of investments. The
first four such Portfolios as of the date of this Declaration are hereby
established and designated:
The Value Portfolio
The Growth Portfolio
The International Growth Portfolio
The Global Interactive/Telecomm Portfolio
These four Portfolios shall be the only Portfolios until additional Portfolios
are established and designated by the Trustees. The Trustees (including any
successor Trustees) shall have the right at any time and from time to time to
reallocate assets and expenses or to change the designation of any portfolio now
or hereafter created, or to otherwise change the special and relative rights of
any such portfolio provided that such change shall not adversely affect the
rights of holders of Shares other portfolios.
Different Portfolios may be established and designated and variations in the
relative rights and preferences as between the different Portfolios shall be
fixed and determined by the Trustees; provided that all Shares shall be
identical except that there may be variations between different Portfolios as to
investment policies, securities portfolios, purchase price, determination of net
asset value, the price, terms and manner of redemption, special and relative
rights as to dividends and on liquidation, conversion rights, and conditions
under which the several Portfolios shall have separate voting rights. All
references to Shares in this Declaration shall be deemed to be shares of any or
all Portfolios as the context may require.
The following provisions shall be applicable to all Portfolios:
(a) The number of Shares of each Portfolio that may be issued shall
be unlimited. The Trustees may classify or reclassify any unissued Shares
or any Shares previously issued and required of any Portfolio into one or
more Portfolio that may be established and designated from time to time.
The Trustees may hold as treasury Shares (of the same or some other
Portfolio), reissue for such consideration and on such terms as they may
16
determine, or cancel any Shares of any Portfolio reacquired by the Trust at
their discretion from time to time.
(b) The power of the Trustees to invest and reinvest the Trust
Property of each Portfolio that has been or that may be established shall
be governed by Section 3.2 of this Declaration.
(c) All consideration received by the Trust for the issue or sale of
Shares of a particular Portfolio, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to that Portfolio for all purposes, subject only to the
rights of creditors, and shall be so recorded upon the books of account of
the Trust. 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, the Trustees shall
allocate them 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. Each such allocation by the
Trustees shall be conclusive and binding upon the Shareholders of all
Portfolios for all purposes.
(d) The assets belonging to each particular Portfolio shall be
charged with the liabilities of the Trust 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 belonging 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. Each allocation of liabilities, expenses, costs,
charges and reserves by the Trustees shall be conclusive and binding upon
the holders of all Portfolios for all purposes. The Trustees shall have
full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive and
binding upon the Shareholders.
(e) The power of the Trustees to pay dividends and make distributions
with respect to any one or more Portfolios shall be governed by Section 9.2
of this Trust. 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 holders of Shares of that Portfolio, from such of the
income and capital gains, accrued liabilities belonging to that Portfolio.
All dividends and distributions on Shares of a particular Portfolio shall
be distributed pro rata to the holders of that Portfolio in proportion to
the number of Shares of that Portfolio held by such holders at the date and
time of record established for the payment of such dividends or
distributions.
17
(f) The assets and liabilities of the Trust shall be allocated as set
forth in this section except as follows:
(1) Costs incurred by the Trust in connection with its
organization and initial registration and public offering of
Shares shall be amortized for each such portfolio over the lesser
of the life of such portfolio or the five year period beginning
with the month that the Trust commences operations.
(2) The liabilities, expenses, costs, charges or reserves of the
Trust (other than management fee, distribution fee or the
organizational expenses paid by the Trust) which are not readily
identifiable as belonging to any particular portfolio shall be
allocated among the portfolios on the basis of their relative
average daily net assets.
(3) The Trustees may from time to time in particular cases make
specific allocations of assets or liabilities among the
portfolios.
(g) Each portfolio shall be authorized to hold cash and invest in
securities and instruments and use investment techniques described in the
Trust's registration statement under the Securities Act of 1933, as amended
from time to time. Each share of beneficial interest of each portfolio
("Share") shall be redeemable as provided in the Declaration of Trust,
shall be entitled to one vote (or fraction thereof in respect of a
fractional share) on matters on which Shares of that portfolio shall be
entitled to vote and shall represent a pro rata beneficial interest in the
assets allocated to that portfolio. The proceeds of sales of Shares of a
portfolio, together with any income and gain thereon, less any diminution
or expenses thereof, shall irrevocably belong to that portfolio unless
otherwise required by law. Each Share of a portfolio shall be entitled to
receive its pro rata share of net assets of that portfolio upon liquidation
of that portfolio. Upon redemption of a shareholder's Shares, or
indemnification for liabilities incurred by reason of a shareholder being
or having been a shareholder of a series, such shareholder shall be paid
solely out of the property of such portfolio.
The establishment and designation of any additional Portfolio of Shares
shall be effective upon the execution by a majority of the then Trustees of any
instrument setting forth the establishment and designation of such Portfolio.
Such instrument shall also set forth any rights and preferences of such
Portfolios which are in addition to the rights and preferences of Shares set
forth in this Declaration. The Trustees may by an instrument executed by a
majority of their number abolish a Portfolio and the establishment and
designation thereof. Each instrument referred to in this paragraph shall have
the status of an amendment to this Declaration.
Section 6.3 Rights of Shareholders. The ownership of the Trust Property of
----------------------
every description and the right to conduct any business hereinbefore described
are vested exclusively in the Trustees, and the Shareholders shall have no
interest therein other than the beneficial interest conferred by their Shares
with respect to a particular Portfolio, and they shall have no right to call for
any partition or division of any property, profits, rights or interests of the
Trust nor can
18
they be called upon to share or assume any losses of the Trust, or suffer an
assessment of any kind by virtue of their ownership of Shares. The Shares shall
be personal property giving only the rights in this Declaration specifically set
forth. The Shares shall not entitle the holder to preference, preemptive,
appraisal, conversion or exchange rights (except for rights to exchange Shares
of one Portfolio for Shares of another Portfolio as set forth in the
Prospectus).
Section 6.4 Trust Only. It is the intention of the Trustees to create only
----------
the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in this Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 6.5 Issuance of Shares. The Trustees, in their discretion, may
------------------
from time to time without a vote of the Shareholders issue Shares with respect
to any Portfolio that may have been established pursuant to Section 6.2, in
addition to the then issued and outstanding Shares and Shares held in the
treasury, to such party or parties and for such amount not less than the then
current net asset value of said Shares and type of consideration, including cash
or property, at such time or times and on such terms as the Trustee may deem
best, and may in such manner acquire other assets (including the acquisition of
assets subject to, and in connection with the assumption of, liabilities) and
businesses. In connection with any issuance of Shares, the Trustees may issue
fractional Shares. The Trustees may from time to time divide or combine the
Shares of any Portfolio into a greater or lesser number without thereby changing
the proportionate beneficial interests in such Portfolio of the Trust.
Contributions to the Trust may be accepted for, and Shares shall be redeemed as,
whole Shares and/or 1/1,000ths of a Share or multiples thereof.
Section 6.6 Register of Shares. A register shall be kept at the Trust or
------------------
the offices of any transfer agent duly appointed by the Trustees under the
direction of the Trustees which shall contain the names and addresses of the
Shareholders and the number of Shares (with respect to each Portfolio that may
have been established) held by them respectively and a record of all transfers
thereof. Separate registers shall be established and maintained for each
Portfolio of the Trust. Each such register shall be conclusive as to who are the
holders of the Shares of the applicable Portfolios and who shall be entitled to
receive dividends or distributions or otherwise to exercise or enjoy the rights
of Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or distribution, nor to have notice given to him as herein provided,
until he has given his address to a transfer agent or such other officer or
agent of the Trustees as shall keep the register for entry thereon. The Trust
shall not be required to issue certificates for the Shares; however, the
Trustees, in their discretion, may authorize the issuance of share certificates
and promulgate appropriate rules and regulations as to their use.
Section 6.7 Transfer Agent and Registrar. The Trustee shall have power to
----------------------------
employ a transfer agent or transfer agents, and a registrar or registrars, with
respect to the Shares of the various Portfolios. The transfer agent may keep the
applicable register and record therein the original issues and transfers, if
any, of the said Shares of the applicable Portfolios. Any such transfer agent
and registrar shall perform the duties usually performed by transfer agents and
registrars of certificates of stock in a corporation, except as modified by the
Trustees.
19
Section 6.8 Transfer of Shares. Shares shall be transferable on the
------------------
records of the Trust only by the record holder thereof or by his agent thereto
duly authorized in writing, upon delivery to the Trustees or a transfer agent of
the Trust of a duly executed instrument of transfer, together with such evidence
of the genuineness of each such execution and authorization and of other matters
as may reasonably be required. Upon such delivery, the transfer shall be
recorded on the applicable register of the Trust. Until such record is made, the
Shareholder of record shall be deemed to be the holder of such Shares for all
purposes hereof and neither the Trustees nor any transfer agent or registrar nor
any officer, employee or agent of the Trust shall be affected by any notice of
the proposed transfer.
Any person becoming entitled to any Shares in consequence of the death,
bankruptcy or incompetence of any Shareholder, or otherwise by operation of law,
shall be recorded on the applicable register of Shares as the holder of such
Shares upon production of the proper evidence thereof to the Trustees or a
transfer agent of the Trust, but until such record is made, the Shareholder of
record shall be deemed to be the holder of such Shares for all purposes hereof
and neither the Trustees nor any transfer agent or registrar nor any officer or
agent of the Trust shall be affected by any notice of such death, bankruptcy or
incompetence, or other operation of law.
Section 6.9 Notice. Any and all notices to which any Shareholder hereunder
------
may be entitled and any and all communications shall be deemed duly served or
given if mailed, postage prepaid, addressed to any Shareholder of record at his
last known address as recorded on the applicable register of the Trust.
ARTICLE VII
Custodians
Section 7.1 Appointment and Duties. The Trustees shall at all times
----------------------
employ, as custodian with respect to each Portfolio of the Trust, a custodian or
custodians, each of which shall have an aggregate capital, surplus and undivided
profits (as shown on its last published report) of at least ten million dollars
and shall meet the qualifications for custodians for portfolio securities of
investment companies contained in the 1940 Act. It is contemplated that separate
custodians may be employed for the different Portfolio of the Trust. Any
custodian, acting with respect to one or more Portfolios, shall have authority
as agent of the Trust or the Portfolio with respect to which it is acting, but
subject to such restrictions, limitations and other requirements, if any, as may
be contained in the By-laws of the Trust and the 1940 Act:
(1) to hold the securities owned by the Trust or the Portfolios and
deliver the same upon written order;
(2) to receive any receipt for any monies due to the Trust or the
Portfolios and deposit the same in its own banking department (if a bank) or
elsewhere as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
20
(4) if authorized by the Trustees, to keep the books and accounts of the
Trust or the Portfolios and furnish and accounting services; and
(5) if authorized to do so by the Trustees, to compute the net income and
the value of the net assets of the Trust or the Portfolios;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian. If so directed by a Majority Shareholder Vote of the
Portfolio with respect to which the custodian is acting, the custodian shall
deliver and pay over all property of the Trust held by it as specified in such
vote.
The Trustees may also authorize each custodian to employ one or more sub-
custodians from time to time to perform such of the acts and services of the
custodian and upon such terms and conditions, as may be agreed upon between the
custodian and such sub-custodian and approved by the Trustees, provided that in
every case such sub-custodian shall meet the qualifications for custodians
contained in the 1940 Act.
Section 7.2 Action Upon Termination of Custodian Agreement. Upon
----------------------------------------------
termination of any custodian agreement with respect to any Portfolio or
inability of any custodian to continue to serve, the Trustees shall promptly
appoint a successor custodian, but in the event that no successor custodian can
be found who has the required qualifications and is willing to serve, the
Trustees shall call as promptly as possible a special Shareholders' meeting to
determine whether such Portfolios shall function without a custodian or shall be
liquidated. If so directed by vote of the holders of a majority of the Shares of
such Portfolios outstanding and entitled to vote, the custodian shall deliver
and pay over all Trust Property held by it as specified in such vote.
Section 7.3 Central Certificate System. Subject to such rules, regulations
--------------------------
and orders as the Commission may adopt or issue, the Trustees may direct the
custodian to deposit all or any part of the securities owned by the Trust or the
Portfolio in a system for the central handling of securities established by a
national securities exchange or a national securities association registered
with the Commission under the Securities Exchange Act of 1934, or such other
person as may be permitted by the Commission, or otherwise in accordance with
the 1940 Act, pursuant to which system all securities of any particular class or
portfolio of any issuer deposited within the system are treated as fungible and
may be transferred or pledged by bookkeeping entry without physical delivery of
such securities, provided that all such deposits shall be subject to withdrawal
only upon the order of the Trust.
Section 7.4 Acceptance of Receipts in Lieu of Certificates. Subject to
----------------------------------------------
such rules, regulations and orders as the Commission may adopt, the Trustees may
direct the custodian to accept written receipts or other written evidences
indicating purchases of securities held in book-entry form in the Federal
Reserve System in accordance with regulations promulgated by the Board of
Governors of the Federal Reserve System and the local Federal Reserve Banks in
lieu of receipt of certificates representing such securities.
21
ARTICLE VIII
Redemption
Section 8.1 Redemptions. All outstanding Shares of any Portfolio of the
-----------
Trust may be redeemed at the option of the holders thereof, upon and subject to
the terms and conditions provided in this Article VIII. The Trust shall, upon
application of any Shareholder or pursuant to authorization from any Shareholder
of a particular Portfolio, redeem or repurchase from such Shareholder
outstanding Shares of such Portfolio at the then current net asset value of such
Shares. If so authorized by the Trustees, the Trust may, at any time and from
time to time, charge fees or deferred sales charges for effecting such
redemption, at such rates as the Trustees may establish, as and to the extent
permitted under the 1940 Act, and may, at any time and from time to time,
pursuant to such Act, suspend such right of redemption. The procedures for
effecting redemption shall be as set forth in the Prospectus with respect to the
applicable Portfolios from time to time.
Section 8.2 Redemptions of Accounts of Less than a Minimum Dollar Amount.
------------------------------------------------------------
The Trustees shall have the power to redeem shares at a redemption price
determined in accordance with Section 8.1 if at any time the total investment in
such account does not have a minimum dollar value determined from time to time
by the Trustees in their sole discretion, provided, however, that the Trustees
may exercise such power with respect to Shares of any Portfolio only to the
extent the Prospectus describes such power with respect to such Portfolio. In
the event the Trustees determine to exercise their power to redeem Shares
provided in this Section 8.2, Shareholders shall be notified that the value of
their account is less than the then effective minimum dollar amount and allowed
60 days to make an additional investment before redemption is processed.
ARTICLE IX
Determination of Net Asset Value, Net Income and Distributions
Section 9.1 Net Asset Value. The net asset value of each outstanding Share
---------------
of each Portfolio of the Trust shall be determined with respect to each
Portfolio at such time or times on such days as the Trustees may determine, in
accordance with the 1940 Act. The method of determination of net asset value
shall be determined by the Trustees and shall be as set forth in the Prospectus
with respect to the applicable Portfolios. The power and duty to make the daily
calculations for any Portfolio may be delegated by the Trustees to the adviser,
manager, administrator, manager, custodian, transfer agent or such other person
as the Trustees may determine. The Trustees may suspend the daily determination
of net asset value to the extent permitted by the 1940 Act.
Section 9.2 Distributions to Shareholders. Except at such times when the
-----------------------------
Trustees deem proper, the Trustees will not distribute to Shareholders net
investment income and realized capital gains, but will retain and reinvest such
net profits. The Trustees may make distributions to Shareholders to the extent
the distribution and the circumstances in which it may be made are determined by
the Trustees to be in the best interests of the Portfolio. The Trustees may
retain and not reinvest from the net profits such amount as they may deem
necessary to pay the debts or
22
expenses of the Trust or to meet obligations of the Trust or as they may deem
desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of the business.
Section 9.3 Power to Modify Foregoing Procedures. Notwithstanding any of
------------------------------------
the foregoing provisions of this Article IX the Trustees may prescribe, in their
absolute discretion, such other bases and times for determining the per share
net asset value of the Trust's Shares or net income, or the declaration and
payment of dividends and distributions as they may deem necessary or desirable
to enable the Trust to comply with any provision of the 1940 Act, or any
securities association registered under the Securities Exchange Act of 1934, or
any order of exemption issued by said Commission, all as in effect now or
hereafter amended or modified.
ARTICLE X
Shareholders
Section 10.1 Voting Powers. The Shareholders shall have the power to vote
-------------
(i) for the election of Trustees as provided in Article II, Section 2.2; (ii)
for the removal of Trustees as provided in Article 11, Section 2.3(d); (iii)
with respect to any investment adviser as provided in Article IV, Section 4.1;
(iv) with respect to the merger, consolidation and sale of assets of the Trust
as provided in Article XI, Section 11.3; (v) with respect to the amendment of
this Declaration as provided in Article XI, Section 11.4; (vi) to the same
extent as the Shareholders of a Massachusetts business corporation as to whether
or not a court action, proceeding or claim should be brought or maintained
derivatively or as a class action on behalf of the Trust or the Shareholders
(provided, however, that a shareholder of a particular Portfolio shall not be
entitled to a derivative or class action on behalf of any other Portfolio (or
shareholders of any other Portfolio) of the Trust); and (vii) with respect to
such additional matters relating to the Trust as may be required by law, by this
Declaration, or the By-laws of the Trust or any regulation of the Trust, by the
Commission or any State, or as the Trustees may consider desirable. Any matter
affecting a particular Portfolio, including without limitation, matters
affecting the investment advisory arrangements or investment policies or
restrictions of a Portfolio, if required by law, shall not be deemed to have
been effectively acted upon unless approved by the required vote of the
Shareholders of such Portfolio if required by law. Unless otherwise required by
law, each whole Share shall be entitled to one vote as to any matter on which it
is entitled to vote, and each fractional Share shall be entitled to a
proportionate fractional vote. There shall be no cumulative voting in the
election of Trustees. Until Shares are issued, the Trustees may exercise all
rights of Shareholders and may take any action to be taken by Shareholders which
is required or permitted by law, this Declaration or any By-laws of the Trust.
Shareholders of each portfolio shall vote separately as class on any matter
except, consistent with the Investment Company Act of 1940, as amended (the
"Act") and the rules and the Trust's registration statement thereunder, (i) the
election of Trustees, (ii) any amendment of the Declaration of Trust, unless the
amendment affects fewer than all classes, in which case shareholders of the
affected classes shall vote separately, and (iii) ratification of the selection
of auditors. In each case of such separate voting, the Trustees shall determine
whether, for the matter to be effectively acted upon within the meaning of Rule
18f-2 under the Act or any successor rule as to a portfolio, the applicable
percentage (as specified in the Declaration of Trust, or the Act and the rules
thereunder) of the Shares of that portfolio alone must be voted in favor of the
matter, or whether the favorable vote
23
of such applicable percentage of the Shares of each Portfolio entitled to vote
on the matter is required.
Section 10.2 Meetings. Shareholder meetings shall be held as specified in
--------
Article I of the By-laws and in Section 2.2 hereof at the principal office of
the Trust or at such other place as the Trustees may designate. No annual or
regular meetings of shareholders are required. Meetings of the Shareholders may
be called by the Trustees and shall be held at such times, on such day and at
such hour as the Trustees may from time to time determine, for the purposes
specified in Section 2.2 and for such other purposes as may be specified by the
Trustees.
Section 10.3 Quorum and Required Vote. Except as otherwise provided by
------------------------
law, the holders of thirty percent of the outstanding Shares of each Portfolio
present in person or by proxy shall constitute a quorum for the transaction of
any business at any meeting of Shareholders. If a quorum, as above defined,
shall not be present for the purpose of any vote that may properly come before
the meeting, the Shareholders present in person or by proxy and entitled to vote
at such meeting on such matter holding a majority of the Shares present entitled
to vote on such matter may by vote adjourn the meeting from time to time to be
held at the same place without further notice than by announcement to be given
at the meeting until a quorum, as above defined, entitled to vote on such matter
shall be present, whereupon any such matter may be voted upon at the meeting as
though held when originally convened. Subject to any applicable requirement of
law, this Declaration or the Bylaws, a plurality of the votes cast shall elect a
Trustee and all other matters shall be decided by a majority of the votes cast
entitled to vote thereon.
Section 10.4 Record Date for Meetings. For the purpose of determining the
------------------------
Shareholders who are entitled to notice of and to vote at any meeting, or to
participate in any distribution, or for the purpose of any other action, the
Trustees may from time to time close the transfer books for such period, not
exceeding 30 days, as the Trustees may determine; or without closing the
transfer books the Trustees may fix a date not more than 180 days prior to the
date of any meeting of Shareholders or declaration of dividends or other action
as a record date for the determination of the persons to be treated as
Shareholders of record for such purposes, except for dividend payments which
shall be governed by Section 9.2 hereof.
Section 10. 5 Proxies. Any vote by a Shareholder of the Trust may be made
-------
in person or by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Trustees or their designee
prior to the time the vote is taken. Pursuant to a resolution of a majority of
the Trustees, proxies may be solicited in the name of one or more Trustees or
one or more officers of the Trust. Only Shareholders of record shall be entitled
to vote. 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. A proxy with respect
to shares held in the name of two or more persons shall be valid if executed by
any one of them unless at or prior to exercise of the proxy the Trust receives a
specific written notice to the contrary from any one of them.
Section 10.6 Additional Provisions. The By-laws may include further
---------------------
provisions for Shareholders' votes, meetings and related matters.
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Section 10.7 Reports. The Trustees shall cause to be prepared with
-------
respect to each Portfolio at least annually a report of operations containing a
balance sheet and statement of income and undistributed income of the applicable
of the Trust prepared in conformity with generally accepted accounting
principles and an opinion of an independent public accountant on such financial
statements. It is contemplated that separate reports may be prepared for the
various Portfolios. Copies of such reports shall be mailed to all Shareholders
of record of the applicable Portfolios within the time required by the 1940 Act.
The Trustees shall, in addition, furnish to the Shareholders at least semi-
annually, interim reports containing an unaudited balance sheet of the portfolio
as of the end of such period and an unaudited statement of income and surplus
for the period from the beginning of the current fiscal year to the end of such
period.
Section 10.8 Shareholder Action by Written Consent. Any action which may
-------------------------------------
be taken by Shareholders may be taken without a meeting if a majority of
Shareholders of each Portfolio entitled to vote on the matter (or such larger
proportion thereof as shall be required by any express provision of this
Declaration) consent to the action in writing and the written consents, are
filed with the records of the meetings of Shareholders. Such consent shall be
treated for all purposes as a vote taken at a meeting of Shareholders.
ARTICLE XI
Duration; Termination of Trust; Amendment; Mergers; Etc.
Section 11.1 Duration. Subject to the provisions of Sections 11.2 and
--------
11.3 hereof, this Trust shall continue without limitation of time.
Section 11.2 Termination.
-----------
(a) The Trust, or any Portfolio thereof, may be terminated by the
affirmative vote of a majority of the Trustees. Upon the termination of the
Trust or any Portfolio:
(i) the Trust or such Portfolios shall carry on no business
except for the purpose of winding up its affairs;
(ii) the Trustees shall proceed to wind up the affairs of the
Trust or such Portfolio and all of the powers of the Trustees
under this Declaration shall continue until the affairs of the
Trust or such Portfolio shall have been wound up, including the
power to fulfill or discharge the contracts of the Trust or such
Portfolio, collect its assets, sell, convey, assign, exchange,
transfer or otherwise dispose of all or any part of the remaining
Trust Property to one or more persons at public or private sale
for consideration which may consist in whole or in part of cash,
securities or other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment,
exchange, transfer or other disposition of all or substantially
all the Trust Property shall require approval of the principal
terms of the transaction and the nature and amount of the
consideration by vote or consent of the holders majority of the
Shares entitled to vote; and
25
(iii) after payment or adequately providing for the payment of
all liabilities, and upon receipt of such releases, indemnities
and refunding agreements as they deem necessary for their
protection the Trustees may distribute the remaining Trust
Property of any Portfolio, in cash or in kind or partly each,
among the Shareholders of such Portfolios according to their
respective rights.
(b) After termination of the Trust or any Portfolio and distribution
to the Shareholders as herein provided, a majority of the Trustees shall
execute and lodge among the records of the Trust an instrument in writing
setting forth the fact of such termination. Upon termination of the Trust,
the Trustees shall thereupon be discharged from all further liabilities and
duties hereunder, and the rights and interests of all Shareholders shall
thereupon cease. Upon termination of any Portfolio, the Trustees thereunder
shall be discharged from any further liabilities and duties with respect to
such Portfolio, and the rights and interests of all Shareholders of such
Portfolio shall thereupon cease.
Section 11.3 Reorganization. The Trustees may sell, convey, merge and
--------------
transfer 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 to the Trust to be held as
assets belonging 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) with such transfer either (1)
being made subject to, or with the assumption by the transferee of, the
liabilities belonging to each Portfolio the assets of which are so transferred,
or (2) not being made subject to, or not with the assumption of, such
liabilities; provided, however, that no assets belonging to any particular
Portfolio shall be so transferred unless the terms of such transfer shall have
first been approved at a meeting called for the purpose by a Majority
Shareholder Vote of that Portfolio. Following such transfer, the Trustees shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities belonging to and any other differences among the various
Portfolios the assets belonging to which have so been transferred) among the
Shareholders of the Portfolio the assets belonging to which have been so
transferred; and if all of the assets of the Trust have been so transferred, the
Trust shall be terminated.
The Trust, or any one or more Portfolios, may, either as the successor,
survivor, or non-survivor, (1) consolidate with one or more other trusts,
partnerships, associations or corporations organized under the laws of the
Commonwealth of Massachusetts or any other state of the United States, to form a
new consolidated trust, partnership, association or corporation under the laws
of which any one of the constituent entities is organized, or (2) merge into one
or more other trusts, partnerships, associations or corporations organized under
the laws of the Commonwealth of Massachusetts or any other state of the United
States, or have one or more such trusts, partnerships, associations or
corporations merged into it, any such consolidation or merger to be upon such
terms and conditions as are specified in an agreement and plan of reorganization
entered into by the Trust, or one or more Portfolios as the case may be, in
connection therewith. The terms "merge" or "merger" as used herein shall also
include the purchase or acquisition of any assets of any other trust,
partnership, association or corporation which is an investment company organized
under the laws of the Commonwealth of
26
Massachusetts or any other state of the United States. Any such consolidation or
merger shall require the approval of a Majority Shareholder Vote of each
Portfolio affected thereby.
Shareholders shall have no right to demand payment for their shares or to
any other rights of dissenting shareholders in the event the Trust or any
Portfolio participates in any transaction which would give rise to appraisal or
dissenters' rights by a shareholder of a corporation organized under Chapter
156B of the General Laws of the Commonwealth of Massachusetts.
Section 11.4 Amendment Procedure. All rights granted to the Shareholders
-------------------
under this Declaration are granted subject to the reservation of the right to
amend this Declaration as herein provided, except that no amendment shall repeal
the limitations on personal liability of any Shareholder or Trustee or repeal
the prohibition of assessment upon the Shareholders without the express consent
of each Shareholder or Trustee involved. Subject to the foregoing, the
provisions of this Declaration (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 then Trustees (or by an officer of the Trust
pursuant to the vote of a majority of such Trustees). Any amendment to this
Declaration that adversely affects the rights of Shareholders may be adopted at
any time by an instrument in writing signed by a majority of the then Trustees
(or by an officer of the Trust pursuant to a vote of a majority of such
Trustees) when authorized to do so by the vote of a majority of the Shares
entitled to vote. Subject to the foregoing, any such amendment shall be
effective upon its filing unless such amendment sets forth some later time for
effectiveness of such amendment
Section 11.5 Incorporation. With the approval of the holders of a
-------------
majority of the Shares, the Trustees may cause to be organized or assist in
organizing a corporation or corporations under the laws of any jurisdiction or
any other trust, partnership, association or other organization to take over all
of the Trust Property or to carry on any business in which the Trust shall
directly or indirectly have any interest, and to sell, convey and transfer the
Trust Property to any such corporation, trust, association or organization in
exchange for the shares or securities thereof or otherwise, and to lend money
to, subscribe for the Shares or securities of, and enter into any contracts with
any such corporation, trust, partnership, association or organization, or any
corporation, trust, partnership, association or organization in which the Trust
holds or is about to acquire shares or any other interest. The Trustees may also
cause a merger or consolidation between the Trust or any successor thereto and
any such corporation, trust, partnership, association or other organization if
and to the extent permitted by law, as provided under the law then in effect.
Nothing contained herein shall be construed as requiring approval of
Shareholders for the Trustees to organize or assist in organizing one or more
corporations, trusts, partnerships, associations or other organizations and
selling, conveying or transferring a portion of the Trust Property to such
organizations or entities.
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ARTICLE XII
Miscellaneous
Section 12.1 Filing. This Declaration and any amendment hereto shall be
------
filed in the office of the Secretary of the Commonwealth of Massachusetts and in
such other places as may be required under the laws of Massachusetts and also
may be filed or recorded in such other places as the Trustees deem appropriate.
Unless such amendment sets forth some later time for the effectiveness of such
amendment, such amendment shall be effective upon its filing. A restated
Declaration, containing the original Declaration and all amendments theretofore
made, 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.
Section 12.2 Resident Agent. The Trust shall maintain a resident agent
--------------
in the Commonwealth of Massachusetts, which agent shall initially be Allmerica
Financial Investment Management Services, Inc., 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
XX 00000. The Trustees may designate a successor resident agent, provided,
however, that such appointment shall not become effective until written notice
thereof is delivered to the office of the Secretary of the Commonwealth of
Massachusetts.
Section 12.3 Governing Law. This Declaration is executed by the Trustees
-------------
and delivered in the Commonwealth of Massachusetts and with reference to the
laws thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to the laws
of said Commonwealth.
Section 12.4 Counterparts. This Declaration may be simultaneously
------------
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
Section 12.5 Reliance by Third Parties. Any certificate executed by an
-------------------------
individual who, according to the records of the Trust or of any recording office
in which this Declaration may be recorded, appears to be a Trustee hereunder,
certifying to: (a) the number or identity of Trustees or Shareholders; (b) the
name of the Trust or any Portfolio thereof, (c) the due authorization of the
execution of any instrument or writing, (d) the form of any vote passed at a
meeting of Trustees or Shareholders; (e) the fact that the number of Trustees or
Shareholders present at any meeting or executing any written instrument
satisfies the requirements of this Declaration; (f) the form of any By-laws
adopted by or the identity of any officers elected by the Trustees; (g) the
existence of any fact or facts which in any manner relate to the affairs of the
Trust or any Portfolio; or (h) the establishment of any Portfolio, shall be
conclusive evidence as to the matters so certified in favor of any person
dealing with the Trustees and their successors.
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Section 12.6 Provisions in Conflict with Law or Regulations.
----------------------------------------------
(a) The provisions of this Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code or with other applicable
laws and regulations, the conflicting provision shall be deemed never to
have constituted a part of this Declaration; provided, however, that such
determination shall not affect any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted prior
to such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction and shall not in
any manner affect such provision in any other jurisdiction or any other
provision of this Declaration in any jurisdiction.
Section 12.7 Principal Business Address. The Trust's business address
--------------------------
will be at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
29
IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as
of the day and year first above written. This document may be executed in one
or more counterparts.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, Trustee
/s/ Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx, Trustee
/s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
Xxxxxx X. Xxxxxxxx, Xx., Trustee
STATE OF California
----------
COUNTY OF Orange
------
Then personally appeared before me, Xxxxxx X. Xxxxxxx, who resides at 0000
----
Xxxxxxxx Xx., Xxxxxxx Xxxxx, XX , and who acknowledged the foregoing instrument
--------------------------------
to be his free act and deed and the free act and deed of the Trustees of The
Fulcrum Trust.
/s/ Xxxxxx Xxxx, Notary Public
--------------------------------------------
Notary Public Xxxxxx Xxxx
My commission expires: October 16, 2002
----------------
STATE OF Massachuestts
-------------
COUNTY OF Worcester, SS
-------------
Then personally appeared before me, Xxxxxx Xxxxxx, who resides at 75 Clarendon
------------
Street, Apt. #204, Boston, MA, and who acknowledged the foregoing instrument to
----------------- ----------
be his free act and deed and the free act and deed of the Trustees of The
Fulcrum Trust.
/s/ Xxxx X. Xxxxxxx
--------------------------------------------
Notary Public Xxxx X. Xxxxxxx
My commission expires: August 27, 2004
---------------
STATE OF Massachusetts
-------------
COUNTY OF Worcester, SS
-------------
Then personally appeared before me, Xxxxxx X. Xxxxxxxx, Xx., who resides at 00
--
Xxxxxxxxx Xxxxx, Xxxxxxx, XX, and who acknowledged the foregoing instrument to
----------------------------
be his free act and deed and the free act and deed of the Trustees of The
Fulcrum Trust.
/s/ Xxxx X. Xxxxxxx
--------------------------------------------
Notary Public Xxxx X. Xxxxxxx
My commission expires: August 27, 2004
---------------
30
